2017 (9) TMI 1635 - AT - Service Tax

Penalty u/s 78 - Appellant had not discharged the Service Tax on the amount received as charges towards manpower recruitment or supply agency services - Held that - in the absence of any correspondence with the department and in the absence of any plausible reason for not discharging the service tax liability in time despite being a Unit registered with the service tax Commissionerate, all reasoning put forthwith by the Appellant would not carry the case any further, as Appellant being an Assessee in the organized sector should have known the law better than anyone else - penalty upheld - appeal dismissed - decided against appellant.

Summary

Issues:
Penalty imposed under Section 78 of the Finance Act, 1994.

Analysis:
The appeal before the Appellate Tribunal CESTAT Bangalore was directed against Order-in-Appeal No. 361/2011 dated 04.07.2011. The issue at hand revolved around the penalty imposed by the adjudicating authority under Section 78 of the Finance Act, 1994, which was upheld by the First Appellate Authority. The case stemmed from the Anti Evasion Staff of the Service Tax Commissionerate discovering that the Appellant had not paid Service Tax on charges for manpower recruitment or supply agency services during a specific period. The Appellant subsequently paid the outstanding amount in cash and Cenvat credit, along with interest. A show cause notice was issued for appropriation of the amounts paid and for the imposition of penalties. The adjudicating authority confirmed the demands, interest, and penalties under various sections of the Finance Act, 1994, leading the Appellant to appeal the penalty under Section 78.

The Appellant argued that there was confusion regarding the taxability of the amounts received due to legal opinions received by their clients, and ongoing litigation with the Commercial Tax department of the State Government. They contended that they did not discharge the service tax liability during the relevant period in good faith, believing that if the Commercial Tax department deemed the activity taxable under VAT, no service tax liability would arise. However, the Tribunal noted that despite the ongoing discussions and correspondence with clients, there was no communication with the Service Tax department regarding the matter. The Tribunal found that as an Assessee in the organized sector, the Appellant should have been more knowledgeable about the law and should have discharged the service tax liability on time.

Ultimately, the Tribunal upheld the findings of the First Appellate Authority, stating that the penalty imposed under Section 78 was justified. The Tribunal concluded that the appeal lacked merit and was therefore rejected. The judgment was pronounced in open court on 21.09.2017.