2013 (5) TMI 147 - AT - Service Tax

Difference in the taxable value as per Bank Statement & ST-3 Return - services of cleaning & manpower recruitment and supply agency - penalty u/s 77 and equal amount of penalty u/s 78 - Held that - Discrepancy was noticed by the audit during the course of audit of their record & accepting the said mistake, the appellants had deposited the amount of service tax and later paid the interest also. Agreeing with contention of the C.A. that discrepancy between the taxable value shown in the ST-3 Returns and the Bank statement was due to receipt of various statutory expenses like, employees contribution of EPF and labour contribution of ESI, which were duly reflected in the respective invoices, but not included in the gross taxable value in the services which indicate that the approach of the appellant have been bonafide - However, penalty under Section 77 has been rightly invoked and imposed. Consequently, the order of the Commissioner (Appeals) confirming imposition of penalty under Section 78 is hereby set aside. Partly in favour of assessee.

Summary

Issues:
1. Discrepancy in taxable value in ST-3 Returns and Bank Statements.
2. Imposition of penalty under Section 77 and Section 78 of the Finance Act, 1994.
3. Bonafide belief in non-inclusion of statutory expenses in taxable value.

Analysis:

Issue 1: Discrepancy in taxable value
The appeal was against an Order-in-Appeal passed by the Commissioner of Central Excise, Kolkata, regarding a discrepancy in the taxable value of services provided by the appellant. The audit team noted a variance between the total gross taxable value in Bank Statements and the value reported in ST-3 Returns. The appellant rectified the error by paying the outstanding service tax amount and later faced a show-cause notice proposing penalties under the Finance Act, 1994.

Issue 2: Imposition of penalties under Section 77 and Section 78
The adjudicating authority imposed penalties of Rs. 5,000 each under Section 77 and Section 78 of the Finance Act, 1994. The appellant contested the penalties, arguing that the non-payment of service tax on certain statutory expenses was due to a bonafide belief that these expenses should not be included in the taxable value for service tax purposes. The appellant relied on a Tribunal judgment to support their argument.

Issue 3: Bonafide belief in non-inclusion of statutory expenses
The appellant contended that the statutory charges collected, such as EPF and ESI contributions, were not retained but paid to the respective authorities. These charges were reflected in the invoices but were not considered in the taxable value for service tax payment. The appellant maintained that this was a bonafide belief and not an attempt to suppress information or misstate facts. The appellate tribunal agreed that the discrepancy arose from the inclusion of statutory expenses in the invoices but not in the taxable value calculation. Consequently, the tribunal set aside the penalty under Section 78 but upheld the penalty under Section 77.

In conclusion, the appellate tribunal partially allowed the appeal, emphasizing the bonafide belief of the appellant regarding the inclusion of statutory expenses in the taxable value. The tribunal found no merit in imposing a penalty under Section 78 but upheld the penalty under Section 77, thereby modifying the order of the Commissioner of Central Excise, Kolkata.