2014 (1) TMI 362 - AT - Service Tax

Demand of service tax - Security services - Penalty u/s 76 & 78 - Service provided to PSU - Held that - assessee has been prompt in paying the service tax in respect of other customers other than BSNL, which is a Government of India undertaking. From the explanation offered and his subsequent conduct, it is obvious probably entertaining a genuine doubt, whether the service tax is payable in respect of a service rendered to BSNL, a Government of India undertaking as they did not pay any service tax, in turn, he did not pay the service tax and after issue of show cause notice, demanded BSNL to pay service tax which they did not pay, but in order to avoid penal consequence, he has paid the tax at the earliest in two installments - it is appropriate that in this case provisions of Section 80 of Finance Act, 1994 is required to be invoked in favour of the appellant. Accordingly the appeal is allowed by way of setting aside the penalties imposed under Sections 76 and 78 of the Finance Act, 1994 - Decided in favour of assessee.

Summary

Issues: Liability to pay penalty under Sections 76 & 78 for non-payment of service tax to PSUs, invocation of Section 80 of the Finance Act, 1994.

Liability to pay penalty under Sections 76 & 78:
The appellant provided security services to various customers, including PSUs, during 2001-2005 but did not collect or pay service tax for four PSU customers. The question was whether the appellant was liable to pay penalties under Sections 76 & 78 for this non-payment. The appellant argued they believed PSUs were not liable to pay service tax until informed otherwise. The AR contended that since the appellant collected and paid tax for other customers, their claim of bona fide belief was not valid. The Tribunal noted that the appellant paid the service tax from their own pocket, and none of the PSU customers had paid it. Considering the nature of service, the service provider, and the transactions involved, the Tribunal found the appellant's belief reasonable. Referring to a previous case, the Tribunal held that invoking Section 80 of the Finance Act, 1994 was appropriate in this situation. Consequently, the penalties under Sections 76 and 78 were set aside.

Invocation of Section 80 of the Finance Act, 1994:
The appellant contended that their belief about not needing to pay service tax to PSUs was genuine, supported by the fact that they paid the tax from their own funds. The AR argued that the liability to pay service tax rests with the service provider, and failure to do so attracts penalties. The Tribunal observed that the appellant promptly paid service tax for other customers but had doubts regarding PSUs, leading to non-payment until a show-cause notice was issued. Following a High Court decision and considering the circumstances, the Tribunal agreed that invoking Section 80 of the Finance Act, 1994 was justified in this case. Consequently, the penalties under Sections 76 and 78 were waived, and the appeal was allowed. Additionally, an application for extension of stay was rejected as the appeal had been decided.

This detailed analysis of the judgment addresses the issues of liability to pay penalty under Sections 76 & 78 and the invocation of Section 80 of the Finance Act, 1994, providing a comprehensive overview of the legal reasoning and decision-making process involved in the case.