2009 (8) TMI 959 - Commissioner - Service Tax

Summary

Issues Involved:
1. Classification of Service
2. Suppression of Facts and Mens Rea
3. Excess Payment of Service Tax
4. Simultaneous Penalty under Sections 76 and 78

Summary:

1. Classification of Service:
The appellant provided services to M/s. Goodlass Nerolac Paints Ltd. during the financial years 2005-06 and 2006-07. The Assistant Commissioner classified these services under "man power recruitment and supply agency service." The appellant contended that their services should be classified under "Business Support Service," as they had obtained registration and paid Service tax under this category from 2006-07 onwards. However, the adjudicating authority confirmed that the activities fall under "man power recruitment and supply agency service" as per the statutory definition and previous orders.

2. Suppression of Facts and Mens Rea:
The appellant failed to take registration and pay Service tax under the correct category, leading to the issuance of a Show Cause Notice (SCN) dated 6-6-2007. The adjudicating authority found that the appellant deliberately avoided registration under "man power recruitment and supply agency service" and instead registered under "Business Support Service" after the SCN was issued. This conduct was deemed as suppression of facts with intent to evade tax, invoking the proviso to Section 73(1) of the Finance Act, 1994. The appellant's reliance on the Apex Court decision in Padmini Products v. CCE was rejected, as the mens rea was proven.

3. Excess Payment of Service Tax:
The appellant claimed an excess payment of Service tax for the financial year 2006-07 due to incorrect cum-duty value calculation. The adjudicating authority noted that no rebuttal was filed against the calculation in the corrigendum, implying acceptance by the appellant. The appellant also contended that the Assistant Commissioner confirmed duty on amounts already taxed under "Business Support Service." The adjudicating authority stated that if proven, the confirmation and corresponding penalty would be reduced accordingly.

4. Simultaneous Penalty under Sections 76 and 78:
The appellant argued that simultaneous penalties under Sections 76 and 78 are not sustainable. The adjudicating authority agreed, citing precedents that penalties under both sections address different situations. Since mens rea was proven, the penalty under Section 78 was upheld, but the penalty under Section 76 was deemed unsustainable.

Conclusion:
The appeal was rejected, and the order passed by the Assistant Commissioner, Central Excise, Ratnagiri Division, was upheld.