2011 (1) TMI 75 - AT - Service Tax

Penalty - difference between ST-3 return and Profit & Loss Account - appellant on their own calculated differential Service Tax, got it verified by Chartered Accountant and submitted the same to the department - Section 80 of Finance Act, invoked Appeal allowed

Summary

Issues:
1. Discrepancy in the value of service provided by the appellants as shown in ST-3 returns and Profit & Loss Account.
2. Imposition of penalties under Section 77 and Section 78 of the Finance Act, 1994.
3. Submission of additional evidence regarding reimbursement received from customers.
4. Applicability of Section 80 of the Finance Act, 1994 for waiver of penalties.

Analysis:
1. The case involved a situation where the appellants were providing taxable Security Services and other services, but there was a noted difference in the value of services shown in ST-3 returns compared to the Profit & Loss Account. This discrepancy led to a short payment of Service Tax amounting to Rs.1,05,494 for a specific period. The appellants, upon realizing the error, paid the outstanding amount along with interest. A show cause notice was subsequently issued, resulting in the imposition of penalties under Section 77 and Section 78 of the Finance Act, 1994.

2. The Chartered Accountant representing the appellant acknowledged the discrepancy in the value of services due to the exclusion of reimbursement received from customers. However, it was noted that this argument was not raised during the adjudication or appellate proceedings but was brought up later during the appeal before the Tribunal. The appellant's representative expressed a lack of interest in continuing the litigation, emphasizing that the Service Tax had been paid promptly upon discovering the error, indicating a genuine mistake rather than an attempt to evade tax.

3. The Revenue argued that the appellant intentionally suppressed the value of Service Tax to evade payments, justifying the imposition of penalties. The issue of reimbursement was contested, stating that without a Tribunal order allowing the submission of additional evidence, it could not be considered in the case.

4. The Tribunal, after considering both sides' arguments, found in favor of the appellant. It noted that the appellant had promptly paid the Service Tax upon realizing the discrepancy, had calculated the differential amount themselves, and sought verification from a Chartered Accountant before submitting it to the department. Citing the provisions of Section 73 and Section 80 of the Finance Act, 1994, the Tribunal concluded that the case warranted the waiver of penalties under Section 77 and Section 78, as a reasonable cause was shown by the appellant. Consequently, the impugned order imposing penalties was set aside, and the appeal was allowed in favor of the appellant.