2019 (5) TMI 233 - AT - Service Tax

Quantum of Penalty u/s 78 of FA - failure to discharge service tax properly - whether the Commissioner (Appeals) have rightly refuse to set aside the penalty under Section 78 of the Finance Act, although he has allowed reduction of the penalty amount by 50% in terms of proviso to Section 78? - HELD THAT - There is admitted failure on the part of the appellant in paying the taxes properly. Further, appellant also failed to pay service tax with interest prior to issue of show cause notice. However, subsequent to passing of the order-in-original on 27.09.2017 appellant have deposited the adjudicated dues by several challans being challan Nos. 01210 to 01217, 01221, 01223, 01295 to 01298, 01290, 01291, 01293, 01280, 01281, 01286, 01323 to 01326 all dated 28.09.2017. The appellant is entitled to benefit of 25% penalty, under the overall facts and circumstances and also the fact that the appellant have admitted tax liability at the time of personal hearing before the adjudicating authority. This appeal is allowed in part and penalty under Section 78 is reduced to 25% of the adjudicated tax dues.

Summary

Issues:
1. Penalty under Section 78 of the Finance Act - Reduction and setting aside by Commissioner (Appeals).

Analysis:
The issue in this appeal revolved around the correctness of the decision by the Commissioner (Appeals) regarding the penalty under Section 78 of the Finance Act. The appellant failed to pay service tax on time, leading to a discrepancy between the billed amount and the tax paid. The Department audited the records and found significant short payments during various periods. The appellant was issued a show cause notice for the short payment of service tax, invoking the extended period of limitation. The appellant did not respond to the notice but assured at the personal hearing that the outstanding dues would be paid. The demand was confirmed with interest, and penalties were imposed under different sections. The Commissioner (Appeals) reduced the penalty under Section 78 to 50% of the demand but set aside penalties under other sections. The appellant contended that the demand was time-barred and the penalty under Section 78 was erroneously retained in part.

Regarding the contention that the transaction was duly recorded but there were errors in reflecting turnover in the ST-3 return, the Tribunal noted the admitted failure of the appellant in paying taxes properly and the failure to pay service tax with interest before the show cause notice. However, it was observed that the appellant had subsequently deposited the adjudicated dues. Considering this, the Tribunal allowed the appeal in part and reduced the penalty under Section 78 to 25% of the adjudicated tax dues. The appellant was directed to provide evidence of payment of interest and the reduced penalty within a specified timeframe.

This judgment highlights the importance of timely payment of taxes, accurate reporting in returns, and the consequences of non-compliance with tax laws. The Tribunal's decision to reduce the penalty takes into account the appellant's actions post the show cause notice and the overall circumstances of the case.