Recently, Hon'ble Karnataka High Court in the matter of K. Madhav Kamath Brother & Co. v. Asst. Comm. of Central Excise, pronounced that even if service tax is paid prior to Show Cause Notice, still the penalty shall be leviable u/s 76/78, 77 of Finance Act'94.
Brief facts of the case:
a. The matter pertains to the period Jan'06 to Oct'06. The department issued SCN for non-filing of return& non-payment of service tax along with the levy of penalty on the same(within the SCN itself) u/s 76/78 & 77 of Finance Act'94.
b. However, the assessee deposited the service tax liability before issuance of SCN.
c. The assessee contended that since there wasn't any intention to evade service tax, and non-filing of returns/non-payment of tax was merely bonafide mistake, hence penalty couldn't be levied.
d. On appeal being filed before CESTAT-Bnglr,the tribunal rejected the plea of assessee and upheld the levy of penalty.
e. Subsequently, appeal was filed before High Court.
f. The High Court also held that even if service tax is paid prior to issuance of SCN, it doesn't preclude from levy of penalty u/s 76/78 & 77 of ibid. The aforesaid verdict may be accessed from the following link:
The aforesaid judicial pronouncement pertains to Jan'06 to Oct'06, however, from 8th May'10, explanation 2 to section 73(3) was inserted to grant relief from penalty, but that too in case both(i.e. service tax as well as interest) were paid before issuance of SCN.
Therefore, it would be interesting to see if department can take advantage of the the said judgement for levying penalty in cases post May'10 wherein service tax was paid before issuance of SCN but interest wasn't deposited.
CA Sumit Grover