2011 (3) TMI 1114 - AT - Service Tax

Penalty - Manpower supply and construction service - The Appellant is providing the service of manpower supply and construction service to National Mineral Development Corporation Ltd.- The Counsel submits that The Appellant has already paid Rs.5,13,216/- and also submits that The Appellant has not been able to recover the Service tax from NMDC and, therefore, the Appellant paid the tax amount from its realisation - Held that - As the appellant has already deposited the duty amount involved though it could not realise this amount from the receiver of service - The question whether it is eligible for waiver of penalty is to be considered during final hearing - But in the facts and circumstances of the case, find it proper to waive the rest of the demand during the pendency of the appeal.

Summary

Issues:
Service tax liability on manpower supply and construction services, imposition of penalties under Sections 76, 77, and 78, eligibility for re-working of assessable value, waiver of penalty under Section 80 of the Finance Act, 1994.

Analysis:
The case involved the Appellant providing manpower supply and construction services to a government company, National Mineral Development Corporation Ltd., without paying the applicable service tax at the relevant time. A demand was raised against the Appellant for service tax amounting to Rs.5,16,821/- along with penalties under Sections 76, 77, and 78. The Counsel for the Appellant argued that the Appellant had paid a significant portion of the tax liability from its own funds as it could not recover the amount from the government company. The Counsel also cited a Supreme Court case to support the re-working of the assessable value based on the cum-tax price realized by the Appellant.

The Departmental Representative contended that the Appellant failed to provide necessary documents to determine the assessable value based on the money realized. It was also highlighted that the Appellant, despite being a registered service tax provider, did not file service tax returns, leading to the imposition of penalties under Section 76. The Departmental Representative suggested that at least a part of the penalty under Section 78 should be deposited by the Appellant.

After considering the arguments from both sides, the Judge found that the Appellant had already paid the duty amount even though it faced difficulties in recovering the same from the service recipient. The issue of waiver of penalty was to be deliberated further during the final hearing. However, in light of the circumstances, the Judge decided to waive the remaining demand during the appeal's pendency and ordered a stay on the collection of the balance amounts.

In conclusion, the judgment addressed the service tax liability, penalties under various sections, the Appellant's payment of the duty amount, the lack of recovery from the service recipient, the eligibility for re-working the assessable value, and the decision to waive the remaining demand during the appeal process.