2017 (12) TMI 714 - AT - Service Tax

Short payment of service tax - short paid amount was paid on being pointed out - demand of interest with penalty u/s 78 - Held that - the appellant has paid the service tax along with interest much before issuance of SCN and therefore SCNshould not have been issued to the appellant in view of section 73(3) of the FA, 1994 - there is no suppression of material fact on the part of the appellant and therefore the imposition of penalty u/s 78 is not warranted. Also, it is a case of revenue neutrality because the appellant are entitled to take credit of service tax paid by them under the provisions of 66A of FA, 1994. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against rejection of appeal by Commissioner (A) - Non-payment of service tax - Imposition of penalty under section 78 - Applicability of section 73(3) of Finance Act, 1994 - Suppression of facts - Eligibility for input service credit.

Analysis:
The appellant filed an appeal against the order of the Commissioner (A) rejecting their appeal regarding non-payment of service tax. The appellant, engaged in various services, had short paid service tax, which was later paid along with interest. A show cause notice was issued proposing recovery, interest, and penalty under section 78. The Assistant Commissioner confirmed the demand and imposed a penalty. The appellant argued that they had paid the tax and interest before the show cause notice was issued, citing section 73(3) of the Finance Act, 1994. The appellant also claimed entitlement to input service credit.

The appellant contended that the impugned order was unsustainable as it did not consider the facts and evidence properly. They argued that they had paid the entire service tax before the show cause notice, rendering it unwarranted under section 73(3). The appellant referenced previous decisions where penalties were dropped under similar circumstances. They also asserted that there was no suppression of facts, citing relevant case law. The appellant claimed entitlement to credit under section 66A of the Finance Act, 1994.

The Assistant Commissioner maintained that the audit team's discovery of the non-payment indicated willful suppression by the appellant. However, the Tribunal found that the appellant had paid the tax and interest before the show cause notice, making the notice unnecessary under section 73(3). The Tribunal also noted the absence of material fact suppression and ruled against penalty imposition under section 78. The Tribunal emphasized the appellant's eligibility for service tax credit under section 66A, ensuring revenue neutrality.

Conclusively, the Tribunal held that the impugned order was unsustainable in law and allowed the appeal of the appellant, setting aside the Commissioner (A)'s decision. The judgment highlighted the importance of compliance with statutory provisions and the significance of timely payment of taxes to avoid penalties and unnecessary legal proceedings.

(Order dictated in Open Court on 26/10/2017)