2013 (4) TMI 525 - AT - Service Tax

Goods Transport Agency - under-disclosure of service tax liability on GTA services - demand of service tax, education cess, interest and penalty u/s 75,78 and penalty under section u/s 76 waived, under Section 80 - Held that - Once the conditions enumerated in Section 11AC and failure to remit the amount of duty under the first proviso and the amount of penalty determined under the second proviso to the said provision are established, the liability to remit 100% of the penalty is statutorily enjoined and no discretion inheres in any authority to avoid the legislative mandate as to the quantum of penalty. In the light of the judgment of Castrol India Limited 2012 (6) TMI 697 - BOMBAY HIGH COURT the contention of the assessee does not commend acceptance by this Tribunal. The appeal is dismissed in the above circumstances, but without costs.

Summary

Issues:
Appeal against order confirming service tax liability, education cess, interest, and penalties. Appellant failed to provide substantiating material for under-disclosure claim. Discretion under second proviso to section 78 of the Act in question. Comparison with Delhi High Court and Tribunal decisions. Reference to recent Bombay High Court decision on penalty imposition.

Analysis:
The judgment pertains to an appeal against an order confirming service tax liability, education cess, interest, and penalties imposed on the appellant. The appellant failed to provide any substantiating material to support the claim of under-disclosure of the value concerning transactions related to non-taxable services. The sole contention raised was regarding the alleged error in not exercising discretion under the second proviso to section 78 of the Act. The appellant relied on the Delhi High Court decision in K.P. Pouches (P) Ltd. vs. Union of India and a Tribunal decision in Sonam Clock Pvt. Ltd. vs. CCE, Rajkot to support their argument.

The respondent, represented by Shri M.S. Negi, cited a recent decision of the Bombay High Court in CCE, Mumbai vs. Castrol India Ltd. The Bombay High Court, referencing various precedents including those of the Tribunal and the Delhi High Court, emphasized the statutory obligation to remit 100% of the penalty once certain conditions under Section 11AC are met. The High Court held that no discretion exists to deviate from the legislative mandate on penalty quantum.

Considering the Bombay High Court's decision in Castrol India Ltd., the Tribunal dismissed the appeal. The Tribunal found that the appellant's argument, based on the Delhi High Court and Tribunal decisions, was not tenable in light of the clear statutory requirement to remit the full penalty amount once specific conditions are satisfied. The appeal was rejected without imposing any costs on the appellant.