2017 (1) TMI 1459 - AT - Service Tax

Penalty u/s 76, 77 and 78 - non-payment of service tax - Consulting Engineer Service - Held that - Since the amount of service tax claimed by the appellant was deposited by MPCON into Central Government account as per the policy adopted by them, the service tax cannot further be claimed from the appellant. Thus, in this case, no mala fides can be attributed to the appellant, justifying imposition of penalty - penalty set aside. Interest - Held that - since the service tax in question was not deposited within the stipulated time frame and deposited belatedly by MPCON on behalf of the appellant, we are of the view that the appellant is liable to pay interest on such delayed payment of service tax. Appeal allowed in part.

Summary

Issues:
Service tax liability for consulting engineer services, applicability of Section 80 of the Finance Act, 1994 for penalty imposition, delay in payment of service tax by MPCON.

Analysis:
The appeal was against an order confirming a service tax demand of ?4,83,383/- along with interest and penalties imposed on the appellant for providing consulting engineer services without discharging the service tax liability due to non-registration with the Service Tax Department. The appellant had received an advance of ?44,32,690/- from MPCON for taxable services. The appellant sought the benefit of Section 80 of the Finance Act, 1994 to avoid penalties, arguing that MPCON had deposited the service tax amount directly into the Government account, demonstrating no mala fides. The Commissioner (Appeals) upheld the demand, emphasizing the appellant's awareness of the service tax liability, as evidenced by invoices and bank statements.

The Tribunal noted that the appellant did not collect excess service tax or retain it to defraud the Government, as MPCON had deposited the claimed service tax amount into the Government account. Consequently, the Tribunal found no mala fides on the appellant's part justifying penalty imposition. The penalties imposed were set aside, but the appellant was held liable to pay interest for the delayed service tax payment by MPCON. The impugned order was set aside, and the appeal was allowed to the extent of overturning the penalties, with the appellant directed to pay interest on the delayed service tax payment.

In conclusion, the Tribunal ruled in favor of the appellant by setting aside the penalties imposed, considering the absence of mala fides in the appellant's actions regarding service tax payment. The decision highlighted the importance of timely service tax payment, holding the appellant liable for interest due to the delayed payment by MPCON on the appellant's behalf.