2012 (11) TMI 776 - AT - Service Tax

Simultaneous penalty u/s 76 and 78 - Business Auxiliary services - Held that - Confirming the amount of Service Tax along with interest has not contested by the assessee. As decided in CCE versus First Flight Courier Ltd. 2011 (1) TMI 52 - HIGH COURT OF PUNJAB AND HARYANA that if penalty stand imposed u/s 78 imposition of separate penalty under Section 76 is not justified. Thus upholding the imposition of penalty to the extent of 100% under Section 78, the penalty u/s 76 is set aside. Option extended to the assessee to deposit 25% of the penalty within a period of 30 days of passing of impugned order u/s 78 with the penalty shall stand reduced to that amount. Imposition of penalty of Rs.1000/- under Section 77 is however upheld.

Summary

Issues:
1. Confirmation of Service Tax liability and interest
2. Imposition of penalties under Section 76, 77, and 78

Analysis:
1. The appellant, engaged in providing services as a commission agent falling under Business Auxiliary services, was registered with the Service Tax department and discharging their liability. During a visit to their premises, a delayed Service Tax payment of Rs.2,57,010/- was acknowledged by Shri R.K. Gupta due to health reasons. The lower authorities confirmed the Service Tax demand, appropriated the deposited amount, and imposed penalties under various sections of the Finance Act, 1994.

2. The appellant did not contest the confirmation of Service Tax and interest but challenged the simultaneous imposition of penalties under Section 76 and 78 at 100% each. The advocate referred to a decision of the Hon'ble Punjab & Haryana High Court regarding the justification of such penalties. It was argued that the option to pay 25% of the penalty was not extended by the lower authorities, citing a case from the Hon'ble Gujarat High Court. The appellate tribunal considered these arguments.

3. The tribunal upheld the Service Tax liability and interest as uncontested. Regarding penalties, it noted the Punjab & Haryana High Court decision that if a penalty is imposed under Section 78, a separate penalty under Section 76 is not justified. Consequently, the penalty under Section 76 was set aside while upholding the penalty under Section 78. The tribunal extended the option to pay 25% of the penalty within 30 days, as per the Gujarat High Court's ruling. The penalty under Section 77 was upheld, while the overall penalty amount was subject to reduction upon compliance.

4. In conclusion, the tribunal disposed of the appeal by confirming the Service Tax liability and interest, setting aside the penalty under Section 76, upholding the penalty under Section 78 with a reduction option, and maintaining the penalty under Section 77. The judgment provided clarity on the imposition and reduction of penalties under different sections of the Finance Act, 1994, based on legal precedents and principles.