2015 (8) TMI 256 - AT - Service Tax

Penalty u/s 76 & 78 - Services of Erection, Commissioning or Installation and Management, Maintenance or Repair Services - Held that - Entire service tax of ₹ 7,19,763/- was paid alongwith interest and 25% penalty. It was the case of the advocate appearing on behalf of the appellant that the payment particulars have been incorrectly stated in Para 29 and 36.9 of the Adjudication order and entire penalty of 25% payable under Section 78 of the Finance Act, 1994 stand paid and thus no penalty is required to be paid under Section 76 of the Finance Act, 1994. It is observed from the order dated 22.4.2014 passed by the first Appellate authority that he has not deliberated on the issue of reconciliation of payment particulars and the amounts paid by the appellant. For the purpose of reconciliation of the payments made vis- -vis duty liability of the appellant, the matter is required to be remanded back to the original adjudicating authority - Decided in favour of assessee.

Summary

Issues:
- Appeal against OIA upholding OIO
- Incorrect appropriation of penalty amount
- Imposition of Section 76 penalty when Section 78 penalty paid

Analysis:
1. Appeal against OIA upholding OIO:
The appellant filed an appeal against the Order-in-Original (OIO) upheld by the Commissioner (Appeals) in the case involving a demand of &8377; 7,19,763/- for services provided. The appellant did not contest the liability to pay service tax but raised concerns regarding the incorrect appropriation of penalty amounts. The Tribunal observed that the first Appellate authority did not deliberate on the reconciliation of payment particulars and directed a remand back to the original adjudicating authority for quantification of duty payments and penalties paid, with an opportunity for a personal hearing.

2. Incorrect appropriation of penalty amount:
The appellant's advocate argued that the penalty payment particulars were incorrectly stated in the Adjudication order, emphasizing that the entire 25% penalty under Section 78 of the Finance Act, 1994, had been paid. The Tribunal noted the need for a detailed examination of the payment reconciliation and directed the adjudicating authority to address this issue. The appellant's contention regarding the incorrect mention of penalties pertaining to a period before October 2006 was highlighted, indicating the necessity for a thorough review of the penalty amounts paid.

3. Imposition of Section 76 penalty when Section 78 penalty paid:
The issue of whether Section 76 penalty is imposable when Section 78 penalty has been paid was raised during the proceedings. The Tribunal instructed the first Appellate authority to consider this aspect and make a decision on the imposition of Section 76 penalty based on the payments made by the appellant. The appellant was advised to present relevant judgments from Higher Courts on this matter to the adjudicating authority for consideration.

In conclusion, the Tribunal allowed the appeal by remanding the case back to the Adjudicating authority for a detailed examination of duty payments, penalty amounts, and the imposition of Section 76 penalty in light of the payments made by the appellant. The decision highlighted the importance of proper reconciliation of payment particulars and the need for a comprehensive review of the penalty imposition in accordance with the applicable legal provisions.