2013 (4) TMI 425 - AT - Service Tax

Commercial and Industrial Construction and Residential Complex Construction Service - period 10.9.2004 and 16.6.2005 - penalty imposed u/s 78 was reduced to 25% by Commissioner (Appeals) - Held that - Assessee was paying service tax under category of Commercial and Industrial Construction and Residential Complex Construction Service prior to 1.5.2006. Service tax on maintenance and repairs was also being paid by them under Section 65(25) of the Finance Act after availing abatement of 67% under Notification No. 1/2006 dated 1.3.2006 Revenue demanded service tax short paid by them under Maintenance and Repair under Section 65(64) of the Finance Act. Thus assessee was under bona fide belief that maintenance and repair of building was covered under Section 65(25)(b) and service tax was being paid by them. Thus there is reasonable cause for not paying service tax short paid by them and benefit of Section 80 of the Finance Act 1994 is available to the assessee. Accordingly we set aside the penalty confirmed by the Commissioner (Appeals) and consequently reject the Revenue s appeal.

Summary

Issues:
Classification of services under Commercial and Industrial Construction and Maintenance and Repair categories; imposition of penalty under Sections 76 and 78 of the Finance Act; interpretation of Sections 65(25)(b) and 65(64) of the Finance Act; applicability of abatement under Notification No. 1/2006; benefit of Section 80 of the Finance Act 1994.

Classification of Services:
The case involved appeals by an assessee and the Revenue against the same Order-in-Appeal related to service tax on Maintenance and Repair services provided by the assessee to a client. The Department contended that the services fell under Management, Maintenance, and Repair category, taxable from 1.5.2006. The assessee argued that they were engaged in construction activities covered under Commercial and Industrial Construction services, with repairs falling under Section 65(25) of the Finance Act, not 65(64) as claimed by the Revenue. The Tribunal noted the payment history of the assessee under different service categories and the dispute over the classification of Maintenance and Repair services.

Imposition of Penalties:
The Joint Commissioner had imposed penalties under Sections 76 and 78 of the Finance Act, which were partially set aside and reduced by the Commissioner (Appeals). The assessee challenged the penalty imposition, arguing for no penalty due to a reasonable cause for the failure to pay the service tax. The Revenue contested the reduction of penalties by the Commissioner (Appeals), advocating for the original penalty amount equal to the tax amount. The Tribunal considered the arguments on penalty imposition and reduction in the context of the classification and payment history of the services by the assessee.

Interpretation of Sections 65(25)(b) and 65(64):
The assessee's representative highlighted the differing interpretations of the classification of services under Section 65(25)(b) and 65(64) of the Finance Act, emphasizing a reasonable cause for the failure to pay the service tax. The Tribunal acknowledged the two interpretations but focused on the payment compliance and the bona fide belief of the assessee regarding the classification of Maintenance and Repair services. The Tribunal's decision on the penalty imposition was influenced by the interpretation and application of these sections.

Abatement under Notification No. 1/2006:
The Tribunal mentioned the abatement of 67% under Notification No. 1/2006 dated 1.3.2006, applicable to Commercial and Industrial Construction services, but not to the Maintenance and Repair services. The payment history and compliance of the assessee with the abatement provisions were considered in the context of the dispute over the classification and taxation of the services provided.

Benefit of Section 80 of the Finance Act 1994:
The assessee claimed the benefit of Section 80 of the Finance Act 1994, citing a reasonable cause for the failure to pay the shorted service tax amount. The Tribunal agreed with the assessee's argument, finding a bona fide belief in the classification of services and a reasonable cause for the non-payment of the disputed tax amount. Consequently, the Tribunal set aside the penalties imposed by the Commissioner (Appeals) and rejected the Revenue's appeal, allowing the assessee's appeal in respect of penalties only.

---