2019 (5) TMI 1514 - AT - Service Tax

Imposition of penalty u/s 78 - appellant had paid the entire tax with applicable interest after issuance of SCN but within a period of one month - dispute relates to 2013-14 - HELD THAT - As per Section 73 (3) payment of service tax voluntarily on the assessee s own ascertainment and intimating the same to the proper officer of such payment in writing, shall not serve any notice under sub-section (1) in respect of the amount so paid. No disputes that even though the adjudicating authority did not appropriate, yet, the remittance of tax with interest vide challan placed on record into the Government account. This only show the bonafides of the appellant, which was unfortunately not considered by the Revenue. CENVAT credit - input services - vehicle insurance - HELD THAT - The liability was fastened only with the introduction of negative list, from 01.04.2011 and hence, the entire demand was raised considering even the period prior to 01.04.2011, which cannot sustain - it is proper to remand the matter to the file of the adjudicating authority, to pass a denovo Adjudication Order after giving an opportunity to the assessee to put forth its defence in support and to place the relevant supporting documents, who shall thereafter pass a speaking order on merits. Appeal allowed in part and part matter on remand.

Summary

Issues:
1. Availment of Cenvat Credit on Goods Transport Service
2. Availment of ineligible Cenvat credit of vehicle insurance
3. Availment of Cenvat credit on misplaced invoices

Analysis:
1. The appellant contended that the Revenue issued a Show Cause Notice alleging the availment of Cenvat Credit on Goods Transport Service, ineligible Cenvat credit of vehicle insurance, and Cenvat credit on misplaced invoices. The appellant paid the entire tax with interest for issues (i) and (iii) after the issuance of the SCN but within one month, arguing that penalty under Section 78 was unwarranted. Regarding the second issue, the tax with interest was paid before the SCN, invoking Section 73(1) and (3) to argue that the proceedings should be deemed completed. The Ld. Advocate presented these arguments, while the Ld. DR supported the lower authorities' findings.

2. The Tribunal considered the arguments and documents, noting no dispute about the service tax liability. Regarding penalty and the year 2013-14, the Tribunal emphasized Section 73(3), which exempts notice issuance if the tax is voluntarily paid and informed to the proper officer. The Tribunal acknowledged the appellant's payment with interest, showing good faith, and disagreed with the Revenue's stance on the liability introduction post the negative list implementation in 2011. Consequently, the Tribunal remanded the matter to the adjudicating authority for a denovo Adjudication Order, allowing the appellant to present a defense with supporting documents for a speaking order on merits.

3. Considering the circumstances and the appellant's tax payment, the Tribunal opined that the appellant deserved the benefit of Section 73(1) & (3), deeming further proceedings closed and negating the imposition of penalty. Therefore, the Tribunal set aside any penalty imposition, partially allowing the appeal and remanding it as per the detailed terms provided in the judgment.