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TMI ID= 214503
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2012 (7) TMI 78 - CESTAT, AHMEDABAD

M/s PUNJAB AUTOMOBILES Versus CST, AHMEDABAD

Penalty u/s 76 - appellant has already paid the full amount and interest as well as penalty u/s 78 - Held that:- Considering the approach adopted by the appellant this is a case where even penalty under Section 78 was not payable, even then the appellant paid 25% of service tax towards penalty so that unnecessary litigation is avoided and dispute does not arise and thereby paid of all the dues resulting from the adjudication order passed by the Additional Commissioner this is a fit case for waiver of penalty under Section 80 - as a confusion in the minds of the operators of service stations up to 31.10.04 as to whether service tax was payable on this service or not it and after the amendment of the law on 10.09.04, the service tax was being paid regularly by the appellant it cannot be held to be deliberate defiance - in fvaour of assessee.

No.- ST/401/2011

Order No.- A/199/WZB/ADH/2011

Dated.- November 4, 2011

Citations:

  1. P. JANI & CO. Versus COMMR. OF SERVICE TAX, AHMEDABAD - 2010 (7) TMI 297 - CESTAT, AHMEDABAD

  2. FASCEL Ltd. Versus Commissioner of Service Tax - 2009 (10) TMI 237 - CESTAT, AHMEDABAD

  3. Namtech Electronic Devices Ltd. Versus Commissioner of Service Tax, Bangalore - 2009 (9) TMI 672 - CESTAT, BANGALORE

  4. Haiku Motors (P.) Ltd. Versus Commissioner of Service Tax, Bangalore - 2008 (7) TMI 211 - CESTAT, BANGALORE

B S V Murthy, J.

For Appellant: Shri Pravin Dhandharia, CA

For Respondent: Shri R S Srova, AR

Per: B S V Murthy:

The appellant is providing service falling under the category of authorized service station for motor vehicle servicing or repairs and also business auxiliary service. The appellant has received certain amounts as incentives from various insurance companies such as Bajaj Allianz, IFFCO Tokyo. On the ground that the appellants should have paid service tax on the incentives received from these companies, investigation was taken up. As soon as the investigation was taken up and appellant was informed of the liability, the appellant paid the service tax and the interest on 27.02.06 and 03.03.06. Thereafter proceedings were initiated by issue of show cause notice which resulted in confirmation of the demand of service tax and appropriation of the amount paid by the appellant and also in imposition of penalty under Section 78 of Finance Act, 1994. Appellants paid 25% of the service tax towards penalty and thereby paid of all the dues resulting from the adjudication order passed by the Additional Commissioner. However, the Commissioner in exercise of his powers under Section 84 of Finance Act, 1994, proposed a revision of the order passed by the Additional Commissioner and this revision order is impugned before me wherein he has imposed penalty under Section 76 of Finance Act, 1994 taking a view that the Additional Commissioner, the original adjudicating authority, should have imposed penalty under Section 76 also.

2. The authorized representative of the assessee who appeared submitted that they had paid the service tax and interest promptly as soon as they were informed of the same and further penalty under Section 78 was also paid. Further, he also relies upon several decisions of the Tribunal to submit that this is a fit case for waiver of penalty under Section 80 of Finance Act, 1994. The following decisions are relied upon.

1. Fascel Ltd. Vs. CST [2010 (25) STT 6 (AHD-CESTAT)]

2. Haiku Motors (P) Ltd. Vs. CST Bangalore [2008 (17) STT 387 (Bang -CESTAT]

3. Namtech Electronic Devices Ltd. Vs. CST Bangalore [2010 (24) STT 222 (Bang - CESTAT]

4. P. Jani & Co. Vs. CST Ahmedabad [2011 (30) STT 15 (Ahd. - CESTAT]

3. I find that appellant has already paid the full amount and interest as well as penalty under Section 78. Since the issue involved is only penalty under Section 76 and I have considered the facts and records and also heard both the sides, I find that the issue itself can be decided finally. Therefore the requirement of pre-deposit is waived and the appeal itself is taken up for decision.

4. The appellant is seeking waiver of penalty under Section 80 of Finance Act, 1994. Further, the appellant also contended that this is a case where even penalty under Section 78 was not payable. Even then the appellant paid 25% of service tax towards penalty so that unnecessary litigation is avoided and dispute does not arise. It was submitted that there was a confusion in the minds of the operators of service stations up to 31.10.04 as to whether service tax was payable on this service or not since appellants had felt that they were commission agents. After the amendment of the law on 10.09.04, the service tax was being paid regularly by the appellant and the very fact that the dispute relates to the period from 01.07.03 to 31.10.04 itself would show that the appellants were paying tax regularly. It is also noticed in the records that appellants were addressed by the Assistant Commissioner, Service Tax on 24.11.05 informing them that they were required to pay service tax on commissions received from financial institutions/banks. On 30.11.05, appellants replied to the letter saying that they were paying service tax from September 2004. This correspondence coupled with the submissions made would show that appellants had a feeling that they were not liable to pay service tax prior to September 2004 and only after the department took up verification, they found that they were liable to pay service tax from 01.07.03. As soon as they were informed that they were liable to pay the service tax in 2006, the appellants paid the amounts of service tax & interest promptly. It was also submitted during the hearing that even the calculation of service tax liability and interest thereon was made by the appellants themselves and deposited without any special efforts by the officers of the Revenue. Further, the appellants also did not want to prolong the litigation and therefore paid 25% towards penalty also after the adjudication order was passed. In the case of Haiku Motors Pvt. Ltd. (referred supra) a view was taken that during the period there was confusion as regards category of service and liability of service tax and therefore penalty under Section 80 was not leviable. In that case Commissioner had reviewed the order and imposed penalties. In the case of P. Jani & Co. (referred supra) also a view was taken that if an assessee pays the service tax as soon as advised to do so, it would show his bonafide belief and therefore provisions of Section 73(3) can be invoked and no penalty is imposable under Section 76 and Section 78 of Finance Act, 1994. Further, the circular issued by the Board on 03.10.07 also provides that where an assessee pays the service tax with interest, no further action need to be taken. In this case, I find that appellant has paid even the penalty and is not even challenging the same. Having regard to the facts and circumstances of this case and the approach adopted by the appellant as seen from the records I find that appellant intended to avoid litigation, to pay the service tax amount as per the advice given by the department and further they have also paid interest. Under these circumstances, I find that this is a fit case for waiver of penalty imposed under Section 76 of Finance Act, 1994 by invoking the provisions of Section 80 of Finance Act, 1994 and accordingly the impugned order is set aside and appeal is allowed by setting aside the penalty under Section 76 of Finance Act, 1994.

(Dictated & Pronounced in Court)

 
 
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