2013 (3) TMI 567 - AT - Service Tax

Penalty Delay in payment of service tax Waiver of Pre-deposit - Held that that there has been considerable delay consistently for about 21 months and this cannot be condoned. - Prima facie, Section 76 is attracted - prima facie against the assessee - pre-deposit ordered partly.

Summary

Issues:
1. Delayed payment of service tax by the appellant-assessee.
2. Imposition of penalty by the Commissioner (Appeals).
3. Applicability of penalty under Section 76 for delayed payment.
4. Financial hardships as a mitigating factor for penalty imposition.

Analysis:
1. The appellant-assessee, registered for providing "Business Auxiliary Services," consistently delayed service tax payments from April 2008 to November 2009, with delays ranging from 38 days to 362 days, except for two months. Interest amounting to Rs.3,11,962/- was paid after departmental notification.

2. A show-cause notice proposing penalty was initially dropped by the original authority but reinstated by the Commissioner (Appeals), who imposed a penalty of Rs.7,56,400/- as per the notice.

3. The appellant's advocate argued financial crisis as the reason for payment delays, highlighting regular return filings and subsequent payments upon departmental reminders. Citing relevant court decisions, the advocate contended that penalties were not justified in cases of financial hardship and delayed payments.

4. The department's representative countered, stating that the appellant's case differed from the precedents cited, as the delays were deliberate and continuous over 21 months. Referring to a Tribunal decision, the representative argued that penalties under Section 76 were warranted for delayed service tax payments.

5. After reviewing submissions and records, the judge acknowledged the significant and continuous delays but considered the plea of financial hardships. While finding Section 76 applicable prima facie, the judge directed the appellant to pre-deposit Rs.1,50,000/- within six weeks, with a waiver of the remaining penalty amount and a stay on recovery pending appeal disposal.

This judgment balances the seriousness of delayed tax payments with the appellant's financial challenges, providing a nuanced decision that addresses both legal obligations and mitigating circumstances.