2010 (6) TMI 84 - HC - Service Tax

Penalty u/s 78 demand confirmed for extended period of limitation CESTAT dropped the penalty holding that none of the ingredients to impose penalty under Section 78 of the Finance Act 1994 viz. fraud collusion wilful misstatement suppression or contravention with the intent to evade payment of service tax was alleged Held that - the approach of the Tribunal in finding fault with the order of the Commissioner that there was no allegation of either fraud or collusion or wilful mis-statement or suppression of facts merit acceptance. Reading Sections 78 and 80 together where again it is stated that for imposition of penalty under Section 78 the presence of reasonable cause would be germane we are of the view that the order of the Tribunal in interfering with the order of the Commissioner by upholding the penalty under Section 76 of the Finance Act 1994 while reducing the same from Rs.200/- per day to Rs.100/- per day and the penalty of Rs.1000/- imposed under Section 77 and in setting aside the penalty imposed under Section 78 of the Act is well justified and we do not find any good ground to interfere with the same

Summary

Issues Involved:
Levy of penalty under Section 78 of the Finance Act, 1994 without specific findings of fraud, collusion, wilful misstatement, suppression, or contravention to evade payment of service tax.

Analysis:

Issue 1: Levy of Penalty
The case involved an appeal against the order of the CESTAT related to the levy of penalty under Section 78 of the Finance Act, 1994. The main question raised was whether the Tribunal was correct in holding that the ingredients necessary for imposing a penalty under Section 78 were not alleged, despite the demand for service tax being upheld for an extended period. The respondent, engaged in construction, failed to file necessary returns and received payments from buyers for service tax. The assessing authority determined the tax liability, and after partial payment, a penalty was imposed by the Commissioner under Section 78. The Tribunal set aside the penalty order, citing the absence of specific findings of fraud or collusion to evade service tax.

Issue 2: Interpretation of Sections 78 and 80
The Court analyzed Sections 78 and 80 of the Finance Act, 1994, emphasizing that penalties are imposed for fraud, collusion, wilful misstatement, suppression, or contravention to evade service tax. The Court noted that the Commissioner's order lacked specific findings on these aspects. The respondent claimed ignorance of the statutory liability for service tax, which commenced from a specific date. The Court held that ignorance of the law does not excuse tax payment, but penalties require specific circumstances as outlined in the statute. The Tribunal's decision to set aside the penalty under Section 78 was upheld, considering the absence of allegations regarding fraudulent activities.

Conclusion:
The Court upheld the Tribunal's decision to set aside the penalty imposed under Section 78 of the Finance Act, 1994, due to the lack of specific findings of fraud, collusion, wilful misstatement, suppression, or contravention to evade service tax. The Court emphasized the importance of meeting the statutory requirements for imposing penalties and concluded that the Tribunal's interpretation of Sections 78 and 80 was correct. The appeal was dismissed, affirming the decision in favor of the respondent-assessee.