Penalty not imposable if service tax with interest paid before issue of SCN.

PJ/Case Laws/2012-13/1521

Case:- M.R.COATINGS PVT.LTD. Versus COMMISSIONER OF CENTRAL EXCISE, RAJKOT

Citation:- 2013 (30) S.T.R. 76 (Tri.-Ahmd.)

Issue:- Penalty not imposable if service tax with interest paid before issue of SCN.

Brief Facts:This stay petition is filed for the waiver of pre-deposit of penalty imposed by the first appellate authority on an appeal filed by the Revenue before him against Order-in-Original which has not imposed any penalty under Section 76.

Appellant Contentions:- Ld. Counsel submits that there is no dispute that the entire amount of service tax liability, interest thereof stands paid by the appellant before the issuance of show cause notice hence provisions of Section 73(3) of the Finance Act, 1994should be made applicable and no show cause notice should have been issued. He submits that this ratio is now upheld by the Hon’ble High Court of Karnataka in the case of CCE & ST LTU Bangalore V. Adecco Flexione Work Force Solutions Ltd.- 20111-TIOL-635-HC-KAR-ST.

Respondent Contentions:-Ld. Departmental Representative reiterates the findings of the first appellant authority.

Reasoning of Judgment:-After hearing both sides for some time on the stay petition, Tribunal find that the appeal itself could be disposed of since the issue lies in a narrow compass and hence after allowing the application filed for the waiver of pre-deposit of the amount involved, Tribunal took the appeal itself for disposal.

After hearing both sides and perusing the records, it was found that it is not In dispute in this case that the appellant had discharged the entire service tax liability and interest thereof before the issuance of the show cause notice. The issue is regarding the imposition of penalty on the appellant under Section 76 of the finance Act,1994. We find that once the appellant has already discharged the service tax liability and interest thereof and there being no adjudication to enhance or addition to the amount already discharged by the appellant as service tax liability, provisions of section 73(3) will be applicable in this case and there was no necessity of issuing any show cause notice to the appellant.

This is the ratio from the judgment of the Hon’ble High Court of Karnataka which we may reproduce, with respect.

“Both these appeals are preferred by the assessee challenging the order passed by the Tribunal as well as the Appellant Commissioner who have held that the assessee is not liable to pay any penalty under Sec.76 of the Finance Act, 1994 and therefore, set aside the order passed by the lower authorities imposing penalty.
Act, 1994 categorically states, after the payment of Service Tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under sub-sec. (1) in respect of the amount so paid. Therefore, authorities have no authority to initiate proceedings for recovery of penalty under Sec.76 of the Act.
Unfortunately the assessing authority as well as the appellant authority seem to thank, if an assessee does not pay the tax within the stipulated time and regularly pays tax after the due date with interest, it is something which is not pardonable in law. Though the law does not say so, authorities working under the law seem to think otherwise and thus they are wasting that valuable time in proceedings against person who are paying service tax with interest promptly. They are paid salary to act in accordance with law and to initiate proceedings against defaulters who have not paid service tax and interest in spite of service of notice calling upon them to make payment and certainly not to harass and initiate proceedings against persons who are paying tax with interest for delayed payment. It is high time, the authorities will change their attitude towards these tax payers, understanding the object with which this enactment is passed and also keep in mind the express provision as contained in sub-sec. (3) of Sec.73. The Parliament has expressly stated that against persons who have paid tax with interest, no notice shall be served. If notices are issued contrary to the said Section, the person to be punished is the person who has issued notice and not the person to whom it is issued. We take that, in ignorance of law, the authorities are indulging in this extravaganza and wasting their precious time and also the time of the Tribunal and this court. It is high time that the authorities shall issue appropriate directions to see that such tax payers are not harassed. If such instances are noticed by this Court hereafter, certainly it will be a case for taking proper action against those law breakers.
In that view of the matter, we do not see any merit in these appeals. The appeals are dismissed.
Mark a copy of this order to the Commissioner of Large Tax Payers Unit who is in charge of collection of service tax to issue proper circular to all the concerned authorities, not to contravene this provision, namely sub-sec.(3) of Sec.73 of the Act.”

In view of the law being settled, as hereinabove stated, we find that the impugned order is liable to be set aside and we do so. Impugned order is set aside and appeal is allowed.

Decision:- The appeal is allowed.

Comment:- The crux of this case is to indicate the intention of section 73(3) that this section is introduced so as to ensure that the innocent assessees are not harassed but the attitude of the revenue officers is same for every assessee whether they are innocent or not.

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PJ/Case Laws/2012-13/1521

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