Levy of penalty u/s. 78 unsustained as duty liability with interest paid before issuance of notice

Alstom T&D India Limited Vs Commissioner of Central Excise and Service Tax (CESTAT Chennai)

CESTAT Chennai held that amount already paid towards the duty liability and interest before issuance of show cause notice. Notice issued only for levying penalty is untenable. Hence, levy of penalty u/s. 78 deleted.

Facts- During an internal audit it was noticed that M/s. Areva group had deputed some of their employees to the appellant in India, for utilisation of their expertise and upon payment of a fee. This, according to the Revenue, fell within the purview of manpower supply agency service and therefore there was a Service Tax liability on the appellant under reverse charge mechanism within the meaning of Section 66A of the Finance Act, 1994 read with Rule 3(iii) of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006.

Vide the present appeal the appellant has only contested invocation of larger period of limitation and levy of penalty u/s. 78.

Conclusion- The Hon’ble High Court of Karnataka in the case of Commissioner of Central Excise and Service Tax, LTU, Bangalore v. M/s. Adecco Flexione Workforce Solutions Ltd. had an occasion to consider a similar situation where the Revenue having appropriated the duty liability as well as interest, had issued Show Cause Notice, wherein the proposal was made again to appropriate the amount already paid towards the duty liability and interest and also thereby proposing penalty, had deleted the penalty so levied since there was no loss to the exchequer.

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