2019 (1) TMI 1039 – CESTAT CHENNAI – TMI – Penalty u/s 77 and 78 of FA – non-payment/short payment of service tax – the appellant had got itself registered and paid service tax with interest and late fee – Held that:- Essentially, it implies that the Revenue should have reasons before alleging fraud, suppression etc. and secondly, the provisions of Section 78 stand controlled by Section 80 of the Finance Act, 1994, ibid. This makes that for every default, penalties under Section 77 and 78 are not automatic.
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In the case on hand, much before the issuance of show cause notice the assessee has got itself registered, paid the taxes along with applicable interest and this also is established by the fact that the same is appropriated in the Order-in-Original – In the SCN as well as the orders of the lower authorities, the Revenue has but for reiterating the wordings in the Sections itself, has not gone beyond that to put on record any reasons on the alleged malafides, fraud or suppress
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ppeal relates to two returns viz., for the periods 01.01.2013 to 31.03.2013 for non-submission of service tax return electronically and for the period 01.04.2013 to 30.09.2013, appellant voluntarily submitted service tax return electronically, with a delay of 180 days and also paid late filing fee for the delayed filing of returns. Hence, penal action for non-submission of service tax electronically is unwarranted. For belated submission of service tax the appellant remitted applicable late fee. Further, the appellant had paid the entire service tax along with interest well before the receipt of the show cause notice and there is no allegation of service tax having not been paid or has been short levied or short paid, erroneously refunded, by any reason of fraud or collusion or wilful mis-statement or suppression of facts with intent to evade payment of service tax on the part of the appellant. Hence, except delay in filing service tax electronically, no other contravention of any of t
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f penalty under Section 77 (2) and 78 of the Act ibid. 4.1 I have carefully considered the rival submissions and gone through various decisions relied on by the Ld. Consultant. Section 77 deals with a situation when penalty is leviable for contravention of rules and provisions of the Act for which no penalty is specified in the statute. Admittedly, the appellant had got itself registered and paid service tax with interest and late fee as well and in any case Section 77 stands controlled by Section 80. Section 78 of the Finance Act, 1994 envisages two situations viz. 1. failure to pay service tax and 2. for reasons of fraud, suppression etc. Further, non-payment or short payment of service tax as the case may be is for the reason of fraud or collusion etc. on whom a notice under Section 73 (1) is issued. Essentially, it implies that the Revenue should have reasons before alleging fraud, suppression etc. and secondly, the provisions of Section 78 stand controlled by Section 80 of the Fin
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