2010 (4) TMI 398 - AT - Service Tax

Penalty- Penalty not impossible as interpretation of law involved. Adjudication order ruling out suppression of fact. Held that- revision order not indicating revenue loss due to conduct of assessee. Finding on period of default absent in revision order. Thus section 76 not attracted. Section 78 not invocable without finding on deliberate interference to defy law. Impugned order set aside.

Summary

Issues:
1. Imposition of penalty under Sections 76 and 78 of the Finance Act, 1994.
2. Review of the adjudication order.
3. Interpretation of law regarding penalty on the assessee.
4. Finding on the period of default and deliberate intention to defy the law.

Analysis:
1. The appellant challenged the review order that imposed a penalty under Sections 76 and 78 of the Finance Act, 1994. Penalty under Section 76 was set at Rs. 100 per day from the default date of service tax, limited to the service tax levied. Additionally, a penalty of Rs. 19,244 was imposed under Section 78. The adjudication found no suppression of facts, as evident from the adjudication order's last page, a decision upheld in the first appeal.

2. The Revenue, dissatisfied, initiated a suo motu revision of the adjudication order in question. The Tribunal had previously ruled in favor of levying service tax on the appellant in a separate case. The Revenue sought to uphold the revision order based on this precedent.

3. During the proceedings, it was noted that the appellant's appeal was solely against the penalty. The Tribunal, considering the legal interpretation involved, opined against imposing a penalty on the assessee. The adjudication order revealed no suppression of facts, and the revision order failed to establish any loss of revenue due to the appellant's actions. The Commissioner, who issued the revision order, did not specify the period of default, rendering the application of Section 76 untenable. Without evidence of deliberate defiance of the law, Section 78 could not be invoked.

4. In conclusion, the appeal was allowed, and the revision order was set aside. The Tribunal emphasized the absence of findings on the default period and intentional violation of the law, highlighting the necessity of such determinations for penalties under Sections 76 and 78. The decision was dictated and pronounced in open court, bringing an end to the legal proceedings.