2020 (2) TMI 304 - HC - Service Tax

Reduction in the quantum of penalty imposed u/s 78 - Assessee paid the said short levied service tax only upon the Audit Objection raised in the matter - Section 73(3) and sub-section (4) of the Act - HELD THAT - The Audit Objection raised by the Audit Officer is also ascertainment of tax by a Central Excise Officer within the meaning of Section 73(3) of the Act and there is no dispute that an Auditor of the Department is also a Central Excise Officer. Therefore, payment of the service tax with interest by the Assessee in the year 2013 itself, of course, not on his own or suo motu but on the basis of the Audit Objection viz., on the basis of the determination by an Auditor of the Department would not take out the case of the Assessee from the ambit and scope of Section 73(3) of the Act. Therefore, the question of imposition of penalty under Section 78 of the Act on the Assessee would not arise in the present case. Unless the penalty under Section 78 of the Act itself is leviable on the Assessee, there is no question of any reduction of the quantum of penalty to 25% thereof by the learned Tribunal in its discretion. What is not at all leviable, cannot be reduced. The Assessee is entitled to get the relief in the present case and the Appeal filed by the Assessee deserves to be allowed - the penalty order of original adjudicating Authority as well as that of the learned Tribunal upholding the imposition of penalty under Section 78 of the Act to the extent of 25% both deserve to be set aside - Appeal allowed.

Summary

Issues:
1. Imposition of penalty at a reduced rate of 25% by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT).
2. Payment of short levied service tax by the Assessee.
3. Interpretation of Sections 73(3) and 73(4) of the Finance Act, 1994.
4. Application of Section 78 of the Act for penalty.

Imposition of Penalty at 25%:
The Assessee, M/s.Bright Marketing Company, challenged the imposition of penalty at a reduced rate of 25% by CESTAT. The Tribunal had upheld the penalty on the grounds that the Assessee did not deposit the entire service tax, interest, and 25% penalty within 30 days as required. The Assessee argued that they had already paid the short levied service tax along with interest before the issuance of the Show Cause Notice. The Commissioner of Appeals also acknowledged this payment in his order. The Court analyzed the provisions of Section 73(3) and 73(4) of the Act to determine the applicability of penalty under Section 78.

Payment of Short Levied Service Tax:
The Assessee contended that they had rectified the short levy of service tax by paying the due amount along with interest before the Show Cause Notice was issued. The Court examined Section 73(3) of the Act, which allows the Assessee to correct the error of short-levy either suo motu or based on the tax ascertained by a Central Excise Officer before the issuance of a notice. As the Assessee had complied with these requirements, the Court found that the penalty under Section 78 was not applicable.

Interpretation of Sections 73(3) and 73(4):
The Court clarified that Section 73(4) of the Act applies when service tax has not been paid due to fraud, collusion, wilful mis-statement, or suppression of facts. However, as the Assessee had rectified the short levy based on the Audit Objection, which is considered an ascertainment of tax by a Central Excise Officer, the penalty under Section 78 was deemed inapplicable.

Application of Section 78 for Penalty:
The Court emphasized that unless the penalty under Section 78 is leviable on the Assessee, there is no basis for reducing it. As the Assessee did not fall within the scope of Section 73(4) and was not liable for penalty under Section 78, the Court set aside the penalty orders imposed by the original adjudicating authority and CESTAT. Consequently, the Appeal filed by the Assessee was allowed, and no costs were awarded.

Conclusion:
The Court ruled in favor of the Assessee, concluding that the penalty under Section 78 was not applicable in this case. The Court set aside the penalty orders and allowed the Civil Miscellaneous Appeal filed by the Assessee.

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