2009 (12) TMI 445 - AT - Service Tax

Penalty - . The demand had been raised based on the ledger account of the appellant which showed raising of credit notes to its customers. Commissioner (Appeals) upheld penalty under section 77 and set aside penalty imposed under section 78, but no order was passed as regards equal amount of penalty imposed u/s 76. held that - matter is remand back to original authority for discussing the penalty.

Summary

Issues:
1. Abatement under Notification No. 32/04-ST denied by original authority.
2. Demand of Rs. 72,028 raised by original authority based on ledger account.
3. Imposition of penalties under sections 76, 77, and 78 of the Act.

Analysis:
1. The appeal involved the denial of 75% abatement to the appellant under Notification No. 32/04-ST by the original authority. The Commissioner (Appeals) vacated the original authority's order and allowed the appellant's claim for abatement. The demand of Rs. 72,028 was also contested, with the Commissioner finding the grounds for this demand unclear in the show-cause notice and original authority's order. The Commissioner accepted the appellant's submission that the ledger account did not represent freight amounts and required verification. The penalty of Rs. 1,73,977 under section 78 of the Act was set aside, while the penalty of Rs. 1,000 under section 77 was upheld.

2. The demand of Rs. 72,028 was raised based on the ledger account of the appellant, showing credit notes to customers. The original authority considered these figures as freight amounts subject to tax. However, the Commissioner found the grounds for this demand unclear and agreed with the appellant that the ledger account did not represent freight amounts. The Commissioner vacated the penalty imposed under section 78 of the Act but did not address the penalty under section 76.

3. The appellant's liability for the demand of Rs. 72,028 and the penalties imposed under sections 76, 77, and 78 of the Act were the subject of consideration. The impugned order remanded the question of liability to the original authority for a fresh decision. The Commissioner upheld the penalty under section 77, set aside the penalty under section 78, and did not address the penalty under section 76. The Tribunal decided to remand the entire matter back to the original authority for a fresh decision on the liability and penalties, setting aside the penalties sustained in the impugned order and allowing the appeal by way of remand. The appellant was granted an opportunity to present its case before a fresh decision was made.