2016 (9) TMI 792 - AT - Service Tax

Recovery of interest and benefit of reduced penalty - interest calculated as averaged month-wise as the month-wise break-up was not available - Held that - this case needs to be remanded and I accordingly remand the case to the Additional Commissioner with a direction to redo the calculation of interest on the actual amount due month-wise instead of averaged amount. It is directed that the learned Additional Commissioner before redoing the calculation will give an opportunity to the appellants to produce all the documentary evidence in support of their case as to when they received the Order-in-Original; when they paid the duty, interest and penalty; and further whether appellant is entitled to the benefit of reduced penalty and thereafter decide the case in accordance with law by passing a reasoned order. - Appeal allowed by way of remand

Summary

Issues:
1. Recovery notice for arrears of service tax.
2. Calculation of interest and penalty.
3. Applicability of reduced penalty.
4. Remand of the case for recalculation of interest.

Analysis:
1. The appellant received a recovery notice from the Commissioner directing immediate payment of arrears of service tax amounting to ?4,40,057, failing which recovery action would be initiated under Section 87 of the Finance Act, 1994. The notice was based on an order passed by the Additional Commissioner modifying the demands and imposing penalties related to various services provided by the appellant.

2. The Commissioner intimated the appellant about the interest calculation being done on an averaged month-wise basis due to the unavailability of month-wise breakup information. The appellant had paid the service tax, interest, and penalty within 30 days of receiving the Order-in-Original. However, subsequent letters demanded additional interest and penalty, leading to a dispute regarding the calculation and applicability of reduced penalties.

3. The appellant contended that the interest calculation by the respondent on an average month-wise amount was incorrect and recalculated the interest for a further period. Citing a High Court decision, the appellant argued for the mandatory application of interest under Section 75 of the Act. The Commissioner's refusal to grant the benefit of reduced penalty led to the appellant seeking intervention and ultimately filing the present appeal.

4. After considering the submissions, the Tribunal decided to remand the case to the Additional Commissioner for a recalculation of interest on the actual amount due month-wise, instead of the averaged amount. The Additional Commissioner was directed to allow the appellant to present documentary evidence supporting their case and to decide on the benefit of reduced penalty in accordance with the law. The appeal was allowed by way of remand for further proceedings.

This detailed analysis covers the issues of the recovery notice, interest and penalty calculations, reduced penalty applicability, and the remand decision made by the Tribunal for a fair resolution of the dispute.