2017 (11) TMI 345 - AT - Service Tax

Penalty u/s 76 and 78 - payment of tax with interest and 25% penalty on being pointed out - Manpower Recruitment Agency service - Held that - Since, the SCN in the present case has been issued on 28-8-2009, which is after the date of amendment of Section 78 and imposition of penalty under such provision has been invoked, no further penalty under Section 76 ibid can be imposed on the appellant - penalty u/s 76 and 78 set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Imposition of Service Tax demand along with interest and penalties under Sections 76, 77, and 78 of the Finance Act, 1994.
- Applicability of reduced penalty under Section 78 of the Finance Act, 1994.
- Simultaneous imposition of penalties under Sections 76 and 78 of the Finance Act, 1994.

Analysis:
The case involved the appellant, a registered service provider, who did not pay Service Tax on services provided to specific entities during 2005-06 to 2007-08. The Service Tax department issued a Show Cause Notice (SCN) proposing recovery of Service Tax, interest, and penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The appellant deposited the Service Tax and interest before the SCN was issued. Subsequently, a corrigendum was issued allowing for the payment of a reduced penalty under Section 78. The appellant appealed the adjudication order, arguing for the benefit of the reduced penalty and against the simultaneous imposition of penalties under Sections 76 and 78.

The appellant contended that since they had paid the Service Tax and a portion of the penalty before the corrigendum, they should benefit from the reduced penalty as per the corrigendum. Additionally, they argued that penalties under both Sections 76 and 78 cannot be imposed simultaneously due to an amendment in Section 78 of the Finance Act, 1994, effective from 10-5-2008.

The Tribunal considered the submissions and found that the appellant had indeed paid the Service Tax, interest, and a portion of the penalty before the corrigendum. As the reduced penalty had been deposited within the stipulated time, the appellant was entitled to the benefit of the reduced penalty, precluding any further penalty under Section 78. Regarding the simultaneous imposition of penalties under Sections 76 and 78, the Tribunal noted that the amendment to Section 78 postulated that if a penalty under Section 78 is imposed, no penalty under Section 76 can be levied. Since the SCN was issued after the amendment and invoked penalty under Section 78, no additional penalty under Section 76 could be imposed.

Consequently, the Tribunal set aside the impugned order's imposition of penalties under both Sections 76 and 78, ruling in favor of the appellant. The appeal was allowed, and the decision was pronounced in open court on 20-2-2017.