2012 (1) TMI 4 - HC - Service Tax

Penalty imposed u/s 76, 78 of Finance Act 1994 deleted by Tribunal service tax liability established on payments/commission received by assessee from banks/financial institutions on cars sold under finance schemes - Business Auxiliary Service two corrigendums were issued calling upon and asking the assessee to defend the penalty - Held that - The order of Tribunal specifically states that the corrigendums were issued invoking Section 78 of the Act hence, penalty u/s 78 cannot be deleted on the ground that the show cause notice did not grant any opportunity of rebuttal to the respondent to defend the penalty under the said Section. Therefore, the matter is remitted to the Tribunal for a fresh decision. The Tribunal while deleting the penalty u/s 76 has not discussed and stated the stand of the assessee only. Thus, matter is restored back to the Tribunal to decided whether or not there was any reasonable cause. - Decided in favor of Revenue.

Summary

Issues:
1. Appeal against the order of the Tribunal under Central Excise Act and Finance Act.
2. Deletion of penalties under Sections 76 and 78 of the Finance Act.

Analysis:
The High Court heard an appeal filed by the Revenue challenging the Tribunal's order in the case of Bas Engineering Pvt. Ltd. Two substantial questions of law were framed. The first issue was whether the Tribunal was correct in quashing the penalty under Section 78 of the Finance Act, 1994 due to lack of opportunity for rebuttal to the respondent-assessee. The second issue was whether the Tribunal rightly deleted the penalties imposed under Sections 76 and 78 of the Finance Act, 1994.

The respondent-assessee, an authorized dealer of passenger cars, received payments/commissions from banks/financial institutions for selling cars under finance schemes. Initially, there was a question regarding liability to pay service tax on these payments, which was later admitted and paid belatedly with interest. The Commissioner imposed penalties under Sections 76 and 78 of the Act, which were challenged in the appeal before the Tribunal.

The Tribunal, based on a decision of the Allahabad High Court, deleted the penalty under Section 76. Regarding the penalty under Section 78, the Tribunal noted that the show cause notice did not provide an opportunity for rebuttal, leading to the penalty being set aside. The High Court observed that the corrigendums issued to the respondent-assessee were overlooked by the Tribunal, and there was an error in deleting the penalty under Section 78.

The High Court distinguished a previous judgment and remitted the matter back to the Tribunal for a fresh decision on the penalty under Section 78. Additionally, the High Court found that the Tribunal failed to consider the respondent's invocation of Section 80 of the Act for reasonable cause, and thus, remitted the matter back for examination of factual aspects and explanation offered. The High Court clarified that the Tribunal should assess whether there was a reasonable cause for the penalty imposition. The appeal was disposed of with directions for further proceedings before the Tribunal.