2017 (9) TMI 1065 - AT - Service Tax

Penalty u/s 76 and 78 - appellant have paid full service tax with applicable interest before the adjudication of the tax liability - invocation of section 80 - interpretation of statute - Held that - the reasonable cause for non-payment of service tax during the material time has already been taken note of by the Original Authority. Further, the appellant who is a Government of India Undertaking has fully discharged the service tax with applicable interest before even the service tax liability was confirmed in the first adjudication order - appellant being a Government company creates a rebuttable presumption of nonexistence of any malafide on their part. Though Section 76 penalty is not with reference to malafide intend, this is also a penal provision for non-payment of service tax in time - Section 80 provides for waiver of penalty under Section 76 if reasonable cause is shown for non-payment of tax in time - penalty u/s 76 waived - appeal allowed - decided partly in favor of appellant.

Summary

Issues:
- Appellant paid full service tax with interest before adjudication
- Imposition of penalty under Section 76
- Applicability of Section 80 for waiver of penalty

Analysis:

1. Appellant paid full service tax with interest before adjudication:
The appellant, a Government of India Undertaking, did not discharge service tax during the disputed period due to an interpretation issue regarding the nature of service and its correct classification for tax liability. The Commissioner, in an earlier order, noted that there was no intention to evade payment of service tax, considering the appellant's status. However, a penalty under Section 76 was imposed. The Tribunal remanded the matter back to the Original Authority to examine the claim for waiver of penalty under Section 80. The Original Authority, despite the direction, confirmed the penalty under Section 76, stating that there was no reasonable cause for the non-payment of service tax.

2. Imposition of penalty under Section 76:
The learned Counsel for the appellant argued that the findings of the Original Authority were contrary to the factual and legal positions presented by the appellant in previous litigations. The Original Authority had acknowledged that the non-payment of service tax was due to an interpretation issue and had not imposed a penalty under Section 78. The appellant had paid the service tax in full with interest even before the tax liability was confirmed. The Tribunal noted that the reasons for non-payment mentioned by the Original Authority were sufficient to invoke Section 80 for waiver of penalty under Section 76. The Tribunal also considered the appellant's status as a Government company, creating a presumption of the absence of malafide intent.

3. Applicability of Section 80 for waiver of penalty:
The learned Authorized Representative reiterated the Original Authority's findings, emphasizing that Section 76 operates differently from Section 78 and does not require proof of malafide intent for imposing a penalty. The Tribunal, after hearing both sides and reviewing the records, concluded that the circumstances, including the appellant's status and the early payment of service tax, warranted the application of Section 80 for the waiver of penalty under Section 76. The Tribunal set aside the impugned order and allowed the appeal concerning the penalty under Section 76.

In conclusion, the Tribunal found in favor of the appellant, invoking Section 80 to waive the penalty under Section 76 due to the circumstances surrounding the non-payment of service tax, the appellant's status as a Government company, and the early payment of the tax liability.