2011 (5) TMI 32 - HC - Service Tax

Penalty u/s 78 - Erection, Commissioning and Installation service - Find that short payment was detected in course of audit of records of the Appellant Company when they submitted their financial records to the audit for inspection - The allegation against assessee is that they were not disclosing full value of the taxable service provided to their clients with the intention to evade the service tax - The Tribunal has recorded a finding of fact that the assessee did not have the requisite mens rea to evade payment of service tax - The assessee had duly paid the service tax with interest and also made full and true disclosure in the return - The finding so recorded is not shown to be in any manner perverse - The appeal is dismissed in favour of assessee.

Summary

Issues:
1. Appeal under section 35G of the Central Excise Act, 1944 against order dated 12-8-2010 by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi.
2. Whether the judgment and order passed by the ld. CESTAT, New Delhi is proper and legal.
3. Whether the CESTAT has rightly allowed the party's appeal regarding waiving penalty under section 78 of the Finance Act, 1994.

Analysis:
The case involved an appeal by the revenue under section 35G of the Central Excise Act, 1944 against an order passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi. The assessee was engaged in providing taxable services but failed to pay service tax for services rendered during a specific period. The adjudicating authority confirmed the demand for service tax with interest and imposed penalties under sections 76 and 78 of the Finance Act, 1994. The Appellate Authority partly allowed the appeal but upheld the penalty. However, on further appeal, the Tribunal set aside the penalty, stating that the failure to pay service tax was not to evade duty but due to a bona fide belief that it was not payable.

The Tribunal found that the short payment was due to the appellant's understanding that service tax was not applicable to charges for fabrication and dismantling services. The Tribunal held that the penalty under section 76 could be invoked but questioned the invocability of penalty under section 78, which requires intent to evade payment of service tax through fraud, collusion, wilful misstatement, suppression of facts, or contravention of provisions. The Tribunal concluded that there was no mens rea on the part of the assessee to evade service tax, as they had paid the tax with interest and made full disclosure in the return.

The appellant contended that the penalty under section 78 should not have been interfered with, alleging mis-declaration of the value of taxable service with intent to evade service tax. However, the Court dismissed the appeal, stating that the Tribunal's finding that the assessee lacked the requisite mens rea to evade payment of service tax was not shown to be perverse. The Court held that no substantial question of law arose, and thus, the appeal was dismissed.