2013 (9) TMI 221 - AT - Service Tax

Penalty u/s 78 of the Finance Act, 1994 - Demand of ₹ 3,51,382/-, is on account of difference in the amount of gross taxable value of services shown in the respective balance sheet and the ER-I Returns filed Value between the ST-3 Returns and Balance Sheet did not tally due to inclusion of exempted value of GTA service - Held that - Relying upon the decision in the case of M/s Manpasand Manpower Pvt. Ltd. Vs. Commr. of Service Tax, Kolkata, reported in 2013 (5) TMI 147 - CESTAT KOLKATA - Once all the facts are reflected in the ST-3 Returns as well as in the Balance Sheet, the allegation of suppression of facts is untenable and accordingly, imposition of penalty under Section 78 of the Finance Act, 1994, is unwarranted - Penalty imposed under Section 78 is bad in law Decided in favor of Assessee.

Summary

Issues:
- Appeal against Order-in-Original regarding cenvat credit and service tax demand
- Imposition of penalty under Section 78 of the Finance Act, 1994
- Discrepancy in gross taxable value of services between balance sheet and returns
- Allegation of suppression of facts and mis-declaration

Analysis:
1. The appeal was filed against an Order-in-Original regarding the demand notice for recovery of cenvat credit and service tax. The Commissioner confirmed a demand of &8377; 3,51,382/- and imposed a penalty under Section 78 of the Finance Act, 1994, along with interest. The appellant challenged the imposition of penalty and interest.

2. The appellant argued that they were required to pay service tax on GTA services received, as per Rule 2(d) of Service Tax Rules, 1994. They contended that the total value of taxable services received was reflected in their balance sheet. The appellant excluded payments to small transporters where the value of services was below a certain threshold. The appellant paid the service tax when advised by audit officials, even though they believed it was not required. The appellant claimed no suppression of facts or intent to evade tax, citing relevant tribunal decisions.

3. The Department accepted the adjudicating authority's order and supported the imposition of the penalty under Section 78. The Department reiterated the findings of the Commissioner regarding the penalty.

4. Upon review, the Tribunal found that the demand was due to a discrepancy in the gross taxable value of services between the balance sheet and the returns filed. The appellant had complied with the Department's directive to pay tax on the differential value. The Tribunal noted that there was no suppression of facts in the returns or balance sheet. The difference in values was attributed to the inclusion of exempted value of GTA services. Citing precedent, the Tribunal held that when all facts are disclosed in returns and balance sheets, the allegation of suppression of facts is baseless. Consequently, the imposition of penalty under Section 78 was deemed unwarranted, and the Commissioner's order was set aside regarding the penalty. The appeal was partly allowed on these grounds.