2016 (2) TMI 174 - HC - Service Tax

Levy of penalty u/s 78 - appellant has admittedly paid the entire service tax with interest before filing ST-3 returns - bonafide error on the part of assessee - waiver of penalty u/s 80 - Held that - Counsel lastly contended that by virtue of proviso to Section 78, if the tax demand is based on records maintained by the assessee the penalty would be 50% of otherwise imposable. He pointed out that the term specified record used in the said provision has now been defined by including an explanation to Section 78. However, we notice that such a contention was never raised before the Tribunal and being a mixed question of law and facts, we do not permit same before us for the first time. However, if it is open for the appellant to file a rectification application before the Tribunal on such basis, we do not prevent him from doing so. Tax Appeal is therefore dismissed. - Decided against the asessee.

Summary

Issues:
1. Whether penalty equal to the amount of service tax is permissible under Section 78 of the Finance Act, 1994?
2. Whether imposition of penalty equal to the amount of service tax is justified when the appellant has paid the entire service tax with interest before filing returns?
3. Whether penalty equal to the amount of service tax could not be waived under Section 80 of the Finance Act, 1994?
4. Whether imposition of multiple penalties under Sections 77(1), 77(2), and 78 of the Finance Act, 1994 is permissible and justified?

Analysis:

Issue 1:
The dispute revolved around penalties confirmed by the Tribunal under Section 78 of the Finance Act, 1994, and Section 77 of the same Act. Section 78 provides for penalties for suppressing the value of taxable services due to various reasons like fraud or willful misstatement. The Tribunal rejected the appellant's argument that penalty under Section 78 was not applicable since the service tax was paid before the show cause notice was issued. The Tribunal found that the appellant had recovered service tax from recipients and was registered with the Central Excise Department for the relevant services. The Tribunal concluded that non-payment of service tax was intentional, leading to the rejection of the appellant's request to delete the penalty.

Issue 2:
The Tribunal correctly rejected the appellant's request to delete the penalty under Section 78 as the appellant failed to demonstrate a reasonable cause for not paying the tax. Section 80 of the Act provides that no penalty will be imposed if the assessee proves a reasonable cause for the failure to pay the tax, which the appellant could not establish in this case. The Tribunal noted that the appellant did not plead financial hardship, further supporting the imposition of the penalty.

Issue 3:
Section 73 of the Act deals with the recovery of service tax not paid or short paid. Sub-sections outline the process of issuing show cause notices and considering representations from the assessee. The Tribunal confirmed the penalty under Section 78 based on willful misstatement or suppression of facts, making Section 73(4) applicable, which states that penalties will not be waived in cases of fraud or suppression of facts.

Issue 4:
Regarding Section 77 penalties for contravention of rules and provisions of the Act, the Tribunal upheld the penalties imposed for non-filing of returns and late payment of service tax. The appellant did not provide sufficient grounds for interference with the penalties under Section 77.

In conclusion, the Tribunal's decision to uphold the penalties under Sections 78 and 77 was based on the appellant's failure to demonstrate a reasonable cause for non-payment of service tax and the intentional suppression of facts regarding tax liabilities. The Tribunal's findings were factual, and no legal questions arose, leading to the dismissal of the Tax Appeal.