2019 (5) TMI 467 - AT - Service Tax

Penalty u/s 76 and 78 of FA - Non-payment of service tax in time - service tax along with interest paid later - omission on part of appellant - HELD THAT - The only reason stated for non-payment of service in time is that there was an omission on their part. There is no sufficient cause to invoke section 80 for waiver of penalty imposed under Section 78 - the penalty under Section 78 is upheld. As regard the penalty imposed under Section 76, in view of the Hon ble Gujarat High Court judgment in the case of M/S RAVAL TRADING COMPANY VERSUS COMMISSIONER OF SERVICE TAX 2016 (2) TMI 172 - GUJARAT HIGH COURT , penalties under Section 76 and 78 cannot be imposed simultaneously - the penalty imposed under Section 76 is set aside. Appeal allowed in part.

Summary

Issues involved: Taxability of broadcasting service and cable operator service, waiver of penalty under Section 76 and 78.

Analysis:

1. Taxability of Service: The appellant had paid the tax along with interest, with no dispute on the taxability of the services. The appeal was solely for the waiver of penalties under Section 76 and 78.

2. Non-Appearance of Appellant: Despite notice, no one appeared on behalf of the appellant during the proceedings.

3. Submission by Revenue: The Ld. Superintendent (AR) representing the Revenue reiterated the findings of the impugned order regarding the taxability of services and the penalties imposed.

4. Decision on Penalties: After careful consideration, the Tribunal found that the appellant had paid the tax and interest, and the appeal was focused on penalty waiver. The grounds of appeal cited an omission as the reason for late payment. The Tribunal noted that there was no sufficient cause to invoke Section 80 for penalty waiver under Section 78, upholding the penalty. However, referencing a judgment of the Hon’ble Gujarat High Court, it was established that penalties under Section 76 and 78 cannot be imposed simultaneously. Consequently, the penalty under Section 76 was set aside, partially allowing the appeal.

This judgment by the Appellate Tribunal CESTAT AHMEDABAD addressed the taxability of broadcasting and cable operator services, emphasizing the payment of tax by the appellant but focusing on the waiver of penalties under Sections 76 and 78. Despite the appellant's non-appearance, the Tribunal considered the Revenue's submissions and differentiated between the penalties under the two sections based on legal precedents, ultimately partially allowing the appeal by setting aside the penalty under Section 76 while upholding the penalty under Section 78.