2018 (9) TMI 1451 - AT - Service Tax

Penalty u/s 78 - Supply of Tangible Goods Service - tax paid alongwith Interest on being pointed out - invocation of Section 73(3) of FA - Held that - The appellant has paid the duty along with interest before the issuance of show-cause notice and as per Section 73(3), once the duty is paid along with interest before the issue of show-cause notice, then in that case the Revenue should not issue the show-cause notice unless there is a allegation of fraud or suppression of facts with intent to evade payment of tax - Penalty not warranted and is set aside. CENVAT Credit - inputs/capital goods - it was alleged that capital goods which were cleared by the manufacturer under heading 87042319 covers motor vehicles and therefore are not eligible for availment of credit - discrepancies in documents - Held that - The documents produced by the appellant did not tally with each other and in both the documents, the engine number is different and only the chassis number is matching. Further the amount of cenvat credit is also different in both the documents. In view of this discrepancy, the issue of availment of cenvat credit is remanded to the original authority to verify the said document - Matter on remand. Appeal allowed in part and part matter on remand.

Summary

Issues involved:
1. Service tax liability for the quarters ending September 2011 and December 2011.
2. Availment of cenvat credit on capital goods.
3. Imposition of interest and penalties under various sections of the Finance Act 1994.

Issue 1: Service tax liability for the quarters ending September 2011 and December 2011
The appellant, a service provider under the category of 'Supply of Tangible Goods Service,' faced a show-cause notice alleging non-payment of service tax liabilities for the mentioned quarters. The adjudicating authority upheld the tax liabilities and imposed interest and penalties. The appellant contended that the tax with interest was paid before the show-cause notice, citing legal provisions and relevant case laws. The tribunal found in favor of the appellant, setting aside the penalty under Section 78 due to early payment of the tax with interest, as per Section 73(3) of the Finance Act 1994. The matter of cenvat credit availment was remanded for further verification.

Issue 2: Availment of cenvat credit on capital goods
The appellant's cenvat credit documents did not align, with discrepancies in engine numbers and credit amounts between documents. The tribunal remanded the issue to the original authority for clarification and verification. The appellant argued that the stock transfer consignment note was a valid document supporting cenvat credit availment, referencing relevant case laws and circulars. The tribunal emphasized the need for consistency and accuracy in documents for cenvat credit eligibility.

Issue 3: Imposition of interest and penalties
The appellant's consistent defaults in service tax payments and lack of cooperation with the department were highlighted. The appellant challenged the penalties imposed under various sections, citing early payment of tax with interest and legal provisions. The tribunal considered the early payment of tax with interest before the show-cause notice issuance, leading to the setting aside of penalties under Section 78. The tribunal directed a reevaluation of cenvat credit entitlement and emphasized compliance with documentation requirements for availing credits.

In conclusion, the tribunal ruled in favor of the appellant regarding the penalty under Section 78 due to early payment of tax with interest, remanding the issue of cenvat credit availment for further verification. The importance of accurate documentation and compliance with tax payment timelines was emphasized throughout the judgment, highlighting the legal intricacies and procedural requirements in tax matters.