2017 (3) TMI 658 - AT - Service Tax

Penalty - non payment of tax - Banking Finance and other Financial Services - mobilization of capital - service charges - reverse charge mechanism - Held that - The allegation in the notice for imposing penalty u/s 78 did not bring out any evidence for invoking charge of fraud willful misstatement etc. on the part of the appellant. The only reason quoted is that but for detection by the officers the non-payment would have escaped notice. We note this assertion by himself will not support the ground for the charge of suppression fraud collusion etc. Further we note that the full service tax liability along with interest has been discharged well before the issue of SCN. In normal course the matter should have been closed without even SCN - penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Imposition of penalty under Section 78 for non-payment of service tax on reverse charge basis.
2. Applicability of Section 80 for waiver of penalty.
3. Correctness of the impugned order by the Commissioner regarding penalty imposition.

Analysis:
Issue 1: The appellant contested the penalty imposed under Section 78 for non-payment of service tax on reverse charge basis. The appellant, engaged in cement manufacturing, had paid the service tax liability along with interest upon detection by the officers. The appellant argued that the imposition of penalty was unwarranted as there was no evidence of fraud or willful misstatement. The Tribunal noted that the mere detection by officers did not establish grounds for fraud or suppression. Since the appellant had already paid the full service tax liability and interest before the issuance of the show cause notice (SCN), the Tribunal found no justification for imposing an equal penalty. Consequently, the Tribunal set aside the impugned order regarding penalty imposition.

Issue 2: The appellant sought the benefit of Section 80 for waiver of penalty. However, the original authority did not invoke Section 80 for penalty waiver, leading to a legal challenge. The Tribunal observed that the original authority's failure to consider Section 80 for penalty waiver rendered the order legally improper. The impugned order corrected this oversight by imposing the penalty under Section 78. Despite this, the Tribunal ultimately decided to set aside the penalty imposition based on the lack of evidence supporting fraud or suppression.

Issue 3: The correctness of the impugned order by the Commissioner regarding penalty imposition was questioned. The Commissioner had imposed the penalty under Section 78 based on the confirmed demand as per the proviso to Section 73(1). The appellant argued against the penalty imposition, emphasizing the absence of evidence supporting allegations of fraud or willful misstatement. The Tribunal, after considering the arguments from both sides and examining the case records, concluded that there was no justification for imposing the penalty. As a result, the Tribunal allowed the appeal and disposed of the miscellaneous application.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the imposition of penalty under Section 78 for non-payment of service tax on reverse charge basis. The decision highlighted the importance of evidence and justification for penalties in tax matters, emphasizing the need for a clear basis before penalizing taxpayers.