2010 (2) TMI 341 - AT - Service Tax

Penalty- The appellant has come against the revision order passed by the learned Commissioner under Section 84 of the Finance Act, 1994 imposing penalty under Section 76 and 78. Held that- record not revealing whether penalty warranted. Matter remanded to adjudicating authority to re-examine issue whether penalty imposable and whether assessee entitled to concessional penalty.

Summary

Issues:
1. Imposition of penalty under Sections 76 and 78 of the Finance Act, 1994.
2. Stay application for realization of balance demand.
3. Discharge of service tax before issuance of show cause notice.
4. Applicability of concessional penalty under the First Proviso to Section 78 of the Finance Act, 1994.
5. Re-examination of penalty imposition by the Adjudicating Authority.

Analysis:
1. The appellant challenged the revision order imposing penalties under Sections 76 and 78 of the Finance Act, 1994. The penalty under Section 76 was calculated at Rs. 200 per day or 2% of tax liability per month, resulting in a total penalty of Rs. 75,199. The Revisionary Authority suggested an equal penalty amount should have been imposed, considering the confirmed service tax liability and penalties already paid by the assessee.

2. The Chartered Accountant for the appellant requested a stay on the balance demand pending appeal, as the service tax had been paid in part.

3. The Respondent argued that the Revisionary Authority's order was appropriate, citing the Supreme Court's ruling in a specific case. It was contended that the service tax was not paid before the show cause notice was issued, emphasizing the independent nature of liabilities under Sections 76 and 78 of the Finance Act, 1994.

4. The Tribunal found it unnecessary to burden the registry with pending cases and decided to dispose of the appeal without requiring additional pre-deposit. It was noted that the authorities had not properly considered the matter of penalty, referencing relevant legal precedents regarding concessional penalties under the First Proviso to Section 78 of the Finance Act, 1994.

5. The Tribunal emphasized the need for a fair hearing and re-examination of the penalty issue by the Adjudicating Authority. The matter was remanded for a proper assessment of whether a penalty should be imposed and if the appellant was eligible for a concessional penalty under the law, as per the directions of the High Court in a specific case.

In conclusion, the Revisionary order imposing penalties was set aside, and the case was sent back to the Adjudicating Authority for a thorough review and a fair decision on the issue of penalty, ensuring the appellant's right to be heard on the matter of concessional penalty under the relevant legal provisions.