2014 (9) TMI 977 - AT - Service Tax

Penalty u/s 76, 77 and 78 - Site Formation and Clearance, Excavation and Earth Moving and Demolition Services - Held that - As the appellant has admitted the Service Tax liability and the same is not in dispute, therefore, we are considering only the issue of penalties imposed on the appellant under Sections 76, 77 and 78 of the Finance Act, 1994. We find the C.B.E. & C. vide Circular dated 27-7-2005 clearly clarifies that the activity undertaken by the appellant falls under Site Formation and Clearance, Excavation and Earth Moving and Demolition Services. The appellant has also not approached the department for clarification whether their activity falls under taxable service or not. In the circumstance, we hold that the appellant are not entitled for the benefit of Section 80 of the Finance Act, 1994. As the appellant has paid the entire amount of Service Tax along with interest, therefore, penalty is reduced to 25% of the Service Tax confirmed under Section 78 of the Finance Act against them. The appellant is directed to pay the reduced amount of penalty within a period of 30 days of the communication of this order failing which the appellant shall be liable to pay 100% of the Service Tax payable. Penalty under Section 77 is confirmed. - Decided against assessee.

Summary

Issues:
Appeal against penalties under Sections 76, 77, and 78 of the Finance Act, 1994.

Analysis:
The appellant had a work order from Western Coalfields Ltd. during 1-10-2005 to 3-6-2006 but did not discharge Service Tax liability. The Directorate General of Central Excise Intelligence (DGCEI) initiated an investigation on 1-12-2006. The appellant registered on 17-1-2007 and paid Service Tax on their activities on 30-3-2007. The Service Tax demand was confirmed under "Site Formation and Clearance, Excavation and Earth Moving and Demolition Services." The appellant contended that their activity was akin to mining services, which became taxable only from 1-6-2007. They argued that they should be granted the benefit of Section 80 of the Finance Act, 1994, as they had paid the Service Tax before the issuance of the show cause notice and had also paid interest. The appellant cited various case laws to support their claim.

The respondent opposed the appellant's contention, citing a Central Board of Excise and Customs (CBEC) Circular clarifying the appellant's activity as taxable under Site Formation and Clearance, Excavation, and Earth Moving Services. The respondent argued that the appellant was not eligible for the benefit of Section 80 of the Finance Act, 1994, and the penalties imposed should be upheld.

The Tribunal noted that the appellant had admitted the Service Tax liability, which was not in dispute. The issue at hand was the penalties imposed under Sections 76, 77, and 78 of the Finance Act, 1994. Referring to the CBEC Circular dated 27-7-2005, the Tribunal affirmed that the appellant's activity fell under taxable services. Since the appellant did not seek clarification from the department regarding the taxability of their services, they were deemed ineligible for the benefit of Section 80. The Tribunal also examined the case laws cited by the appellant and found them inapplicable to the current case.

Citing a decision of the Karnataka High Court, the Tribunal ruled that penalties under Sections 76 and 78 cannot be imposed simultaneously. Consequently, the penalty under Section 76 was set aside. Considering that the appellant had paid the entire Service Tax amount along with interest, the penalty under Section 78 was reduced to 25% of the confirmed Service Tax. The appellant was directed to pay the reduced penalty within 30 days; failure to do so would result in liability for 100% of the Service Tax. The penalty under Section 77 was confirmed, and the appeal was disposed of accordingly.