2009 (11) TMI 332 - AT - Service Tax

Penalty u/s 76, 78 suppression of facts- Show cause notice issued does not allege any one of the ingredients of section 78. Therefore, held that- set aside the penalty imposed u/s 78 but for the penalty u/s 76 is uphold as it can not take the shelter of section 80.

Summary

Issues:
Imposition of penalties under Section 76, 77, and 78 of Chapter V of the Finance Act, 1994.

Analysis:

1. Penalty under Section 78:
The Tribunal found that the penalty imposed under Section 78 was not sustainable. Section 78 allows penalties in cases of fraud, collusion, wilful misstatement, suppression of facts, or contravention to evade payment of Service tax. The Tribunal noted that the show-cause notice did not allege any of these five elements against the assessee. Even though the notice mentioned that the assessee registered, filed returns, and paid tax only after detection by the department, this alone was not sufficient to establish fraud or suppression of facts. Consequently, the Tribunal set aside the penalty under Section 78.

2. Penalty under Section 76:
Regarding the penalty under Section 76, the Tribunal did not accept the assessee's argument that they had a reasonable cause for failure to register, file returns, and pay tax due to ignorance of the law. The Tribunal held that ignorance of the law and misinterpretation of statutory provisions did not qualify as reasonable cause under Section 80 of the Finance Act, 1994. Therefore, the Tribunal upheld the penalty under Section 76 but reduced it from the maximum to the minimum amount of Rs.100 per day.

3. Penalty under Section 77:
The Tribunal upheld the penalty of Rs.1,000 under Section 77 of the Finance Act, 1994.

In conclusion, the appeal was partly allowed by setting aside the penalty under Section 78, reducing the penalty under Section 76, and upholding the penalty under Section 77 of the Finance Act, 1994. The Tribunal's decision was based on the specific legal provisions and the absence of evidence supporting the imposition of penalties under Section 78, as well as the lack of reasonable cause for the assessee's actions under Section 76.