TMI Blog2010 (7) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration are : The assessee, provider of packing service and transport of goods by road, failed to register themselves in time and also failed to pay appropriate amount of service tax during the period from 1-1-2005 to 31-12-2006. The Original Authority, after observing the principles of natural justice, confirmed the demand of Service Tax amounting to Rs. 3,55,832 under section 73(2) of the Finance Act, 1994 along with interest of Rs. 40,736 under section 75, imposed penalty of Rs. 100 per day under section 76, Rs. 500 under section 77 and equivalent penalty of Rs. 3,55,832 under section 78 of the Finance Act, 1994. The Service Tax amount of Rs. 3,46,456 along with interest of Rs. 40,736 paid by the assessee before issue of show-cause notice, was appropriated towards adjudicated levies and the balance Service Tax amount of Rs. 9,376 was paid subsequent to issue of show-cause notice. The assessee is challenging the imposition of penalty inter alia on the ground that service tax and interest were paid before issue of show-cause notice; that the delay in payment of Service Tax was due to ignorance of law and that immediately on realising the mistake, the Service Tax along with int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er authorities. His challenge is only towards the imposition of penalties under sections 77 and 78 while revenue is challenging the order on non-imposition of penalty under section 76 of the Finance Act. The factual matrix, as has been reproduced in the relevant facts, is not disputed. It is also on record that the assessee herein had paid the Service Tax amount of Rs. 3,46,456 along with interest of Rs. 40,736 before the issuance of show-cause notice and the balance amount of Rs. 9,376 was paid subsequent to the issue of show-cause notice. The counsel submits that the Service Tax on the Packaging Services is paid. I find that the issue involved in this case is regarding the payment of Service Tax on the Goods Transport Agency during the relevant period. The Service Tax liability on the services was in nascent stage and there was lot of confusion as to who has to discharge the service tax. I find that the co-ordinate Bench of this Tribunal, in an identical case in Busy Bee (supra), has held as under : 4. I have carefully studied the case records and considered the submissions made by both sides. It is obvious from the findings of the lower appellate authority that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imposed under section 78 only if a service provider has evaded payment of duty by fraud, wilful suppression, collusion etc. In the decision of the Tribunal in Noida Catering Service v. CCE, Noida 2008 (9) STR 194 (Trib. - Delhi) cited by the assessee, for reason of the service tax being a new levy the Tribunal had vacated penalties imposed under section 78 of the Finance Act in a case of out-door caterer not registering with the department and not paying tax. The Tribunal had vacated the penalty in view of the provisions of section 80. Section 80 provides for not imposing penalties in cases where there is sufficient cause for the failure of the assessee to follow the statutory formalities. The instant case is a fit one to grant relief provided under the above section. Accordingly, I allow this appeal and vacate penalties imposed on the appellant. 7.2 Further, I find that the Division Bench of this Tribunal, in the case of Vista Infotech (supra), has held as under : 5. We have considered the submissions made by both sides and perused the records. We find that there is no dispute that the appellant had been discharging the service tax liability on the services rendered by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst such person to whom SCN is issued under sub-section (1) of section 73. Therefore, it is not merely a conclusion under sub-section (1), but conclusion of all proceeding against such person. Similar is the position in respect of sub-section (3) of section 73. 4. Accordingly, conclusion of proceeding in terms of sub-section (1A) and (3) of section 73 implies conclusion of entire proceedings under the Finance Act, 1994. It can be seen from the above reproduced Board s Circular, it is clarified that no show-cause notice will be served on the defaulter, provided the taxpayer discharged the service tax liability along with interest, and the proceedings remain concluded. 6. We find that this Bench in the case of Vee Aar Secure (supra) has held as under : 5. On a very careful consideration of the entire matter, we find that in the case law of Karnataka High Court, cited by the learned SDR, the High Court actually upheld the order of the original authority imposing penalty. In this case also, in our view, the case law does not help the revenue. In the present case, the original authority has given a reasoning for waiver of penalty in exercise of his powers under section 80 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
