2013 (3) TMI 542 - AT - Service Tax

Issue of SCN in the name of proprietor and not in the name of proprietorship firm - business of security agency - Contention is that assessee is Veerjawan Securities Services and not Shri S.N. Mahajan. - Further appellant submitted that as there is no allegation of suppression or misrepresentation etc. has been alleged against them in the SCN, therefore penalty under Section 78 is also not sustainable. The same order was challenged before the Commissioner (Appeals) where demands got requantified. Against the said order, appellant is before tribunal. Held that - Proprietorship concern is known by the proprietor of the firm and there is no entity can be identified without the proprietor. Therefore, the person providing the service is only Shri S.N.Mahajan whether he is providing the services in the name of Veerjawan Securities or Jai Jawan Securities. - Demand of service tax confirmed. Regarding penalty - held that - in the show-cause notice, no allegation has been made against the appellant for fraud, therefore penalty under Section 78 is waived. Penalty under Section 75A and 77 stands confirmed.

Summary

Issues:
Demand confirmation under security agency services for the period 16.10.1998 to 30.9.2003 along with interest and penalty under Section 75A, 77, and 78 of the Finance Act, 1994.

Analysis:

1. Issue of Demand Confirmation:
The appellant appealed against the order confirming demand under security agency services for the mentioned period along with interest and penalties under the Finance Act, 1994. The appellant started the security agency under one name in 1997 and changed it in 2002. The show-cause notice was issued based on statements recorded, resulting in the confirmation of the demand. The Commissioner (Appeals) sent the matter for re-quantification, leading to a revised demand. The appellant contested the demand, arguing that the demand for the period before May 2002 was not sustainable and that penalties were not justified due to the absence of allegations of suppression or misrepresentation.

2. Contentions and Submissions:
The appellant's counsel contended that the demand for the period before the name change in 2002 was not valid and penalties were unwarranted. On the other hand, the Respondent's representative argued that the activities continued under the same person, just with a name change, and that the appellant had not registered their activities, indicating suppression. The lower authorities had imposed penalties under Section 78, which the Respondent supported.

3. Judgment and Decision:
The judge analyzed the case, emphasizing that the person providing the service was the same individual, regardless of the name change of the security agency. The judge disagreed with the appellant's argument that the demand was invalid before the name change, confirming the demand for the specified period. However, the judge noted that the show-cause notice did not contain specific allegations of fraud or suppression, leading to the waiver of the penalty under Section 78. Penalties under Sections 75A and 77 were upheld. The appeal was disposed of accordingly with any consequential relief.

This detailed analysis of the judgment highlights the key issues, contentions, and the judge's decision regarding the demand confirmation and penalties under the Finance Act, 1994, in the context of security agency services provided by the appellant.