2012 (12) TMI 34 - AT - Service Tax

Maintenance and Repair Services - confirming the demands raised along with interest, and penalties u/s 76 and 77 - Held that - As appellant is not disputing the service tax liability and interest thereof , thus both confirmed by the adjudicating authority along with interest is upheld. As appellants had been in continuous correspondence with the purchasers of their goods and they were constantly interacting regarding taxability of the services rendered by them in the absence of any mens rea to avoid/evade the service tax liability, this a fit case to invoke the provisions of Section 80 to set-aside the penalties imposed u/s 76 and 77.

Summary

Issues:
Imposition of penalty under Section 76 and 77 of the Finance Act, 1994.

Analysis:
The appeal was against an order directing the appellant to discharge service tax liability for providing services to a company during a specific period. The lower authorities held the appellant liable for service tax under the category of "Maintenance and Repair" services. The appellant raised invoices indicating the service tax but only paid it after a delay, leading to a show cause notice for penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The adjudicating authority confirmed the demands and imposed penalties under Sections 76 and 77, excluding Section 78.

The appellant contested only the penalties under Sections 76 and 77, arguing that they initially believed the services were not taxable and paid the service tax promptly once informed by the customer. The appellant cited a High Court decision and a CBEC Circular in support. The department contended that the appellant, being an organized sector assessee, should have been aware of the service tax liability and fulfilled their obligations promptly, leading to penalties under Sections 76 and 77.

After considering both arguments, the Tribunal noted that the appellant had discharged the service tax liability before the show cause notice and did not dispute the liability or interest. The Tribunal upheld the service tax liability and interest. Regarding the penalties, the Tribunal observed that the appellant had actively engaged with the customer on tax matters, showing no intent to evade tax. Therefore, invoking Section 80 of the Finance Act, 1994, the Tribunal set aside the penalties imposed under Sections 76 and 77.

In conclusion, the Tribunal disposed of the appeal by upholding the service tax liability and interest while setting aside the penalties under Sections 76 and 77 based on the lack of mens rea to evade tax.