2012 (6) TMI 637 - AT - Service Tax

Imposing of penalty u/s 76 - assessee contested that entire amount of service tax liability, interest thereof stands paid by the appellant before the issuance of show cause notice - Held that - As decided in COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX Versus M/s ADECCO FLEXIONE WORKFORCE SOLUTIONS LTD 2011 (9) TMI 114 (HC) that Sub-Sec.(3) of Sec. 73 of the Finance Act, 1994 categorically states that after the payment of service tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under Sub-Sec.(1) in respect of the amount so paid - Therefore, authorities have no authority to initiate proceedings for recovery of penalty u/s 76 - in favour of assessee.

Summary

Issues:
- Stay petition for waiver of pre-deposit of penalty
- Applicability of Section 73(3) of the Finance Act, 1994
- Imposition of penalty under Section 76 of the Finance Act, 1994

Stay Petition for Waiver of Pre-deposit of Penalty:
The stay petition was filed for the waiver of pre-deposit of penalty imposed by the first appellate authority. The Tribunal found that the appeal could be disposed of since the issue was narrow. After allowing the application for the waiver of pre-deposit, the Tribunal proceeded to take up the appeal itself for disposal.

Applicability of Section 73(3) of the Finance Act, 1994:
The appellant had paid the entire service tax liability and interest before the issuance of the show cause notice. The counsel argued that Section 73(3) should be applicable, and no show cause notice should have been issued. The Tribunal agreed that since the appellant had already discharged the service tax liability and interest without any adjudication to enhance the amount, Section 73(3) applied, and there was no need for the show cause notice.

Imposition of Penalty under Section 76 of the Finance Act, 1994:
The issue revolved around the imposition of penalty under Section 76 of the Finance Act, 1994. The Tribunal noted that the appellant had already paid the service tax liability and interest before the show cause notice. Referring to a judgment of the High Court of Karnataka, the Tribunal emphasized that authorities should not initiate penalty proceedings after the payment of service tax and interest. The Tribunal set aside the impugned order and allowed the appeal, citing the settled law that no notice should be served against those who have paid tax with interest as per Section 73(3) of the Act. The judgment highlighted the need for authorities to refrain from harassing taxpayers who promptly pay their dues and to issue appropriate directions to prevent such actions in the future.

In conclusion, the Tribunal set aside the impugned order and allowed the appeal based on the settled law and the provisions of Section 73(3) of the Finance Act, 1994. The judgment underscored the importance of not initiating penalty proceedings against taxpayers who have paid their dues along with interest and called for a change in the authorities' approach towards such taxpayers to avoid unnecessary legal actions and harassment.