2019 (11) TMI 1204 - AT - Service Tax

Service of order - mode of service - imposition of penalty - HELD THAT - The learned Commissioner (Appeals) has nowhere established that the acknowledgement received from the appellant on having received the said Show Cause Notice is available with Revenue - the provisions of Section 37 C of Central Excise Act, 1944 require that the notice is to be sent through registered post with acknowledgement due and if the same is sent through speed post then Department should be in a position to establish that the same has been served on the person for whom it is intended. Thus, the appellants were not put on notice to defend themselves against the proposal of imposition of penalty. Therefore, penalties imposed are not sustainable. Invocation of proviso to sub-Section (1) of Section 73 of Finance Act, 1994 - HELD THAT - The appellant had filed ST-3 also and the whole transaction was reflected in the balance sheet. Therefore, there is no element of suppression - the invocation of proviso to sub-Section (1) of Section 73 of Finance Act, 1994 was not justified in the present case. Therefore, the finding of the learned Commissioner (Appeal) that provisions of sub-Section (3) of Section 73 of Finance Act, 1994 were not applicable in the present case is not sustainable. The penalty imposed is set aside and without interfering with the voluntary deposit of service tax along with interest - appeal allowed.

Summary

Issues:
1. Service of Show Cause Notice through speed post and its validity.
2. Imposition of penalty without proper notice and violation of natural justice.
3. Applicability of proviso to sub-Section (1) of Section 73 of Finance Act, 1994 and its justification for invoking penalty.

Analysis:
1. The case involved a challenge to an Order-in-Appeal dated 26.07.2013 where the appellant contested the service tax demand and penalties imposed. The appellant had entered into a technology license agreement with a company for which they paid royalty and training fees. The appellant argued that the Show Cause Notice dated 28.09.2011 was not served upon them properly. The appellant relied on the principle of natural justice and cited a case from the Hon'ble High Court of Madras to support their claim that proper notice was essential for imposing penalties. The appellant also contested the timeline of the Show Cause Notice issuance concerning the payment of service tax, invoking sub-Section (3) of Section 73 of the Finance Act, 1994.

2. The learned Commissioner (Appeal) held that the delivery of notice through speed post was valid under Section 37 C, distinguishing it from registered post. However, the Tribunal noted that the Department failed to establish proper service of the Show Cause Notice as required by law. The Tribunal found that the penalties imposed were unsustainable due to the lack of proper notice, thereby violating the principles of natural justice.

3. Regarding the invocation of the proviso to sub-Section (1) of Section 73 of the Finance Act, 1994, the Tribunal found that the appellant had promptly deposited the service tax upon being informed. The Tribunal observed that there was no suppression of facts as the transaction details were available in the appellant's records. The Tribunal concluded that the invocation of the proviso was unjustified, and the finding of the learned Commissioner (Appeal) on the inapplicability of sub-Section (3) of Section 73 was unsustainable. Consequently, the penalties were set aside, and the appeal was allowed, affirming the voluntary deposit of service tax along with interest.

In summary, the Tribunal ruled in favor of the appellant, highlighting the importance of proper notice in legal proceedings and the necessity of justifying penalties imposed. The judgment emphasized adherence to procedural requirements and the significance of transparency in tax matters, ultimately leading to the setting aside of penalties and the allowance of the appeal.