2015 (9) TMI 162 - AT - Service Tax

Penalty u/s 77 & 78 - Evasion of duty - Malafide intention - Held that - Commissioner (Appeals) has discussed in details that regarding the fraud committed by the consultant with the appellant for not depositing service tax in the government s account for which FIR proceedings also initiated against consultant by the department, which clearly shows that it is not the appellant who has committed an offence of non payment of service tax, it is the consultant, who has defrauded them therefore there is reasonable cause for waiver of penalty under Section 78. - Commissioner (Appeals) has correctly set aside the penalty imposed under Section 78 - However, penalty u/s 77 is reduced - Decided partly in favour of Revenue.

Summary

Issues involved:
Appeal against dropping penalty under Section 78 and reduction of penalty under Section 77.

Analysis:
The Revenue appealed against dropping the penalty under Section 78 and reducing the penalty under Section 77. The Revenue contended that the respondent had not deposited service tax collected from M/s. Cadbury India Ltd, leading to penalties. The Revenue argued that the penalties should not have been dropped or reduced. On the other hand, the respondent claimed they had no intention to evade service tax, as they paid cash to a consultant responsible for tax matters. The consultant, however, committed fraud by not depositing the service tax, leading to criminal proceedings initiated by the department. The respondent argued that they should not be penalized under Section 78 due to reasonable cause shown, and the penalty under Section 77 was appropriately reduced by the Commissioner (Appeals) based on the consultant's actions.

The Tribunal carefully considered both sides' submissions and the records. It was noted that the appeal focused on the imposition of penalties under Section 78 and restoration of the original penalty amount. The appellant maintained they did not intend to evade service tax, as they relied on the consultant for tax-related tasks. However, the consultant defrauded the respondent by not depositing the cash received as service tax. The Commissioner (Appeals) found no evidence of collusion between the appellant and the consultant, leading to the dropping of penalties under Section 78. The Commissioner also reduced the penalty under Section 77, considering the consultant's fraudulent actions and the lack of evidence against the appellant.

The Commissioner's findings highlighted that the consultant's fraud, not the appellant's actions, led to the non-payment of service tax. The Commissioner correctly set aside the penalty under Section 78 due to the reasonable cause of the consultant's fraud. Additionally, the reduction of the penalty under Section 77 from Rs. 20,000 to Rs. 500 was deemed appropriate by the Commissioner, considering the circumstances. The Tribunal upheld the Commissioner's decision, stating that there was no reason to interfere with the reduction of penalties, as it was done after proper consideration. Consequently, the appeal by the Revenue was dismissed, and the case was disposed of accordingly.