2010 (1) TMI 275 - HC - Service Tax

Penalty Section 78 mandatory penalty - The Commissioner of Central Excise Appeals-I in terms of his order dated 31-3-2006 while thought it proper to set aside the penalty levied under Section 73 of the Finance Act, 1994, was of the view that there was neither any suppression or deliberate misrepresentation on the part of the assessee warranting levy of penalty under Section 78 of the Finance Act, 1994. Tribunal dismissed the appeal filed by the revenue against the order of commissioner (appeals) Held that The finding of fact by the adjudicating authority and as affirmed by the appellate authority is that there was no suppression in meeting any Service tax liability. In the wake of such clear and categorical finding of fact, this appeal does not merit examination under Section 35G of the Act, as there is absolutely no scope for interference, in this appeal with the order of the Tribunal.

Summary

Issues:
1. Appeal against order of Central Excise Service Tax Appellate Tribunal
2. Levy of penalties under Section 78 of the Finance Act, 1994
3. Appeal against setting aside of penalties by Commissioner of Central Excise [Appeals-I]
4. Appeal by Revenue against order of Appellate Commissioner
5. Dismissal of appeal by CESTAT
6. Appeal under Section 35G of the Central Excise Act, 1944
7. Arguments regarding non-payment of Service tax and penalties
8. Finding of no suppression in meeting Service tax liability
9. Examination of appeal under Section 35G of the Act
10. Lack of error or illegality in Tribunal and Commissioner's orders
11. Dismissal of the appeal

Analysis:

1. The judgment involves an appeal by the Revenue under Section 35G of the Central Excise Act, 1944 against the order of the Central Excise Service Tax Appellate Tribunal, South Zonal Bench, Bangalore. The Tribunal had rejected the appeal of the Commissioner of Central Excise [Appeals-I] against the order of the Commissioner of Central Excise [Appeal], which had set aside penalties levied on the assessee under Section 78 of the Finance Act, 1994. The penalties were related to non-payment of duty and suppression of facts regarding Service tax for a specific period.

2. The genesis of the case lies in a show cause notice issued to the assessee, a cable operator providing internet services, proposing a total levy of Service tax for a certain period. The adjudicating authority levied Service tax and penalties under Section 78 of the Finance Act, 1994. The Commissioner of Central Excise [Appeals-I] later set aside the penalty under Section 73 but found no suppression warranting penalty under Section 78.

3. The Revenue, aggrieved by the order setting aside penalties, filed an appeal before the CESTAT. However, the CESTAT dismissed the appeal, concurring with the Commissioner's decision. Subsequently, the present appeal under Section 35G of the Act was filed challenging the Tribunal's decision.

4. The arguments presented by the Revenue's counsel emphasized the automatic levy of penalties under Section 78 due to non-payment of Service tax within the extended period. However, the Court did not find merit in these submissions. The Court noted the absence of suppression in meeting Service tax liability based on factual findings by the adjudicating and appellate authorities.

5. The Court concluded that there was no scope for interference in the Tribunal's order as there was no suppression of facts regarding the Service tax liability. Therefore, the appeal was dismissed, affirming the orders of the Tribunal and the Commissioner of Central Excise [Appeals-I]. The Court found no error or illegality in the decisions of the lower authorities, leading to the dismissal of the appeal.