2016 (6) TMI 159 - AT - Service Tax

Imposition of penalty - Section 78 of the Finance Act, 1994 - Advertisement Agency Service - non-payment of Service tax - entire demand along with interest paid before issuance of SCN - Held that - if the tax payable stands paid based on assessee s own ascertainment or on the basis of Central Excise Officer, before service of notice on an assessee, no notice shall be served in respect of the amount so paid. In this case, no notice ought to have been issued as the appellant is coming within the regress of Section 73(3). It is found that this is a repetitive show cause notice and therefore by applying the decision of Hon ble Supreme Court in the case of Nizam Sugar Factory Vs CCE - 2006 (4) TMI 127 - SUPREME COURT OF INDIA , when relevant facts are in the knowledge of the authorities, when the first SCN was issued, the subsequent SCN cannot allege suppression of facts. The penalty under Section 78 can be imposed only when there is fraud or collusion or wilful misstatement or suppression of facts but in the instant case when the tax along with interest stands paid, the need for imposition of penalty is unsustainable. - Decided in favour of appellant

Summary

Issues:
1. Imposition of penalty under Section 78 of the Finance Act.

Analysis:
The case involved M/s. Ishvarya Publicities Pvt. Ltd., registered under the category of Advertisement Agency Service, facing proceedings for non-payment of service tax. The appellant claimed to have paid the tax amount along with interest before the issuance of the show cause notice (SCN). The main contention was regarding the imposition of penalty under Section 78 of the Finance Act, which the appellant argued was not applicable since the disputed tax amounts had been paid along with interest before the notice was served.

The appellant's counsel contended that the appellate authority's order attracting Section 78 was not sustainable. They highlighted that the appellant's unit had been audited earlier, and various show cause notices had been issued and duly paid by them. The counsel argued that the appellant had made advance payments towards their service tax liability, which were adjusted accordingly. Despite paying the entire service tax demand and interest, they were issued with a fresh SCN invoking an extended period, which the counsel argued against.

On the other hand, the Revenue contended that under the self-assessment scheme, it was the taxpayer's responsibility to discharge the liability without any flaw and not to blame the department for procedural irregularities. The dispute primarily revolved around the interpretation and application of Section 78 of the Finance Act in the context of the appellant's case.

The Tribunal analyzed the relevant provisions of Section 73(3) of the Finance Act, which specify the procedures for payment and recovery of service tax. The Tribunal noted that if the tax payable had been discharged based on the assessee's own ascertainment or as per the Central Excise Officer before the service of notice, then no notice should be served for the amount paid. In this case, as the tax had been paid before the issuance of the notice, the Tribunal held that no notice should have been issued, and the appellant fell within the scope of Section 73(3).

Moreover, the Tribunal referred to a previous Supreme Court judgment to support the appellant's case, emphasizing that when relevant facts were known to the authorities at the time of the first SCN, subsequent SCNs alleging suppression of facts were not valid. The Tribunal concluded that since the tax, along with interest, had been paid, there was no basis for imposing a penalty under Section 78. Therefore, the Tribunal allowed the appeal, ruling in favor of the appellant regarding the imposition of the penalty under Section 78 of the Finance Act.

In summary, the judgment focused on the correct application of statutory provisions, the taxpayer's compliance with payment obligations, and the inapplicability of penalties when taxes had been paid as per the law. The decision provided clarity on the procedural aspects of tax liabilities and penalties under the Finance Act, ultimately favoring the appellant in this case.