2011 (1) TMI 865 - AT - Service Tax

Demand - Maintenance or Repair Services and Erection, Commissioning & Installation Services - Ignorance of law - Excess tax paid by the appellant this issue is not raised before the original authority - Notification No. 6/2005-ST dated 1.3.2005 - Since the Commissioner (Appeals) has found that it is a fit case for invoking Section 80 of the Finance Act and since the conduct of the assessee in paying excess Service Tax and interest shows lack of knowledge of service Tax law, I deem it appropriate to extend full benefit under Section 80 of the Finance Act, 1994 and set aside the penalty under Section 78 also which was sustained by the Commissioner (Appeals) - Appeal is allowed by way of remand to original authority to consider the issue of excess payment of service tax.

Issues:
1. Liability of the appellants for Service Tax under 'Maintenance or Repair Services and Erection, Commissioning & Installation Services'.
2. Imposition of penalties under Sections 75A, 76, 77, and 78 of the Finance Act, 1994.
3. Claim of exemption up to Rs.4 lakhs for the year 2005-06.
4. Allegation of lack of awareness of Service Tax laws by the appellants.
5. Appeal against penalties and excess payment of Service Tax and interest.
6. Application of Section 80 of the Finance Act, 1994.

Analysis:

1. The case involved a small-scale sector appellant issued a show-cause notice for alleged liability to Service Tax under specific categories. The appellants paid the entire Service Tax along with interest following an investigation by Central Excise officers. The original authority imposed penalties under various sections of the Finance Act, 1994. On appeal, the Commissioner (Appeals) set aside some penalties but upheld the penalty under Section 78.

2. The Chartered Accountant representing the appellant argued that due to lack of awareness of Service Tax laws, the appellants did not claim the benefit of exemption up to Rs.4 lakhs for the year 2005-06. He highlighted that excess payment of Service Tax and interest was made, which was not addressed by the Commissioner (Appeals). The appellant sought setting aside the penalty under Section 78 and a reduction in the Service Tax demand.

3. The Departmental Representative contended that the appellants did not claim the exemption and justified the penalty under Section 78 due to non-registration and non-payment of Service Tax. The Commissioner (Appeals) was acknowledged for providing substantial relief under Section 80 of the Finance Act, 1994.

4. Upon review, the Tribunal noted that the appellants were eligible for exemption for the relevant year but failed to realize it. The Commissioner (Appeals) did not grant relief for the excess payment of Service Tax and interest, despite acknowledging the lack of knowledge on Service Tax matters by the appellants. The Tribunal found it appropriate to extend full benefit under Section 80, setting aside the penalty under Section 78 and remitting the claim of excess payment for verification by the original authority.

5. The Tribunal disposed of the appeal by setting aside the penalty under Section 78 and directing the original authority to reconsider the claim of excess payment of Service Tax and interest, granting a reasonable opportunity of hearing to the appellants.

This detailed analysis covers the liability for Service Tax, penalties imposed, exemption claims, lack of awareness, appeal arguments, application of Section 80, and the final decision of the Tribunal.

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