2011 (7) TMI 740 - AT - Service Tax

Demand - Maintenance and Repair Services - assessee filed an appeal before the Commissioner (Appeals) and submitted before the said authority that they had discharged the service tax liability and interest thereon much before the issue of the show-cause notice and had also filed the service tax return for the relevant period before the issuance of the notice - if the assessee has discharged the service tax liability on his own ascertainment or on the basis of ascertainment by the Central Excise officers and inform the Central Excise officer of payment of such service tax then, no notice under sub-section (1) in respect of the amount so paid shall be served - Decided in favor of the assessee

Summary

Issues:
Non-payment of service tax, imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994, applicability of Section 73(3) of the Finance Act, 1994.

Analysis:
The appellant, a small-scale contractor providing Maintenance and Repair Services, was alleged to have not remitted service tax promptly to the Revenue for services provided to a client. The jurisdictional Assistant Commissioner issued a show-cause notice for non-payment of service tax and proposed penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The appellant did not respond, leading to an ex-parte order confirming the service tax amount, interest, and imposing penalties. The appellant argued before the Commissioner (Appeals) that they had paid the service tax and interest before the notice, citing Section 73(3) of the Finance Act, 1994, which prohibits issuing notices for already paid taxes. However, the appeal was rejected, prompting the appellant to appeal further.

The appellant's advocate contended that the lower appellate authority did not consider the appellant's plea regarding the inapplicability of the notice and penalties as per Section 73(3) of the Finance Act, 1994. The appellant had paid the service tax and interest before the notice was issued, making the notice legally untenable. The respondent, though supporting the lower authorities' findings, agreed that the appellate authority did not address the appellant's arguments, suggesting a reconsideration. The Tribunal noted that the appellant had paid the service tax and interest well before the notice, as per Section 73(3) of the Finance Act, 1994, which prohibits issuing notices for already paid taxes. Given the appellant's compliance and absence of willful misstatement, the Tribunal found the penalties under Sections 76, 77, and 78 unwarranted, setting them aside and allowing the appeal.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the penalties imposed under Sections 76, 77, and 78 of the Finance Act, 1994, based on the provisions of Section 73(3) and the appellant's timely payment of service tax and interest. The appeal was allowed, providing consequential relief, if any, to the appellant.