2014 (3) TMI 545 - AT - Service Tax

Penalty u/s 76 & 78 - Rent-a-cab service - Mis declaration of service - Held that - the appellants had filed the return correctly but made the mistake in calculation of tax payable and as soon as the same was pointed out and a show-cause notice was issued, the appellants paid the amount with interest. There is no specific finding that the mis-declaration was with intention to evade duty/tax. If the intention was to evade the tax, naturally the amount received would not have been declared correctly. Even accepting the submission that there was a mis-declaration on the part of the assessee in calculating service tax, the intent to evade tax does not flow from this submission. Therefore the fact remains that appellant paid the tax and interest after the issue of show-cause notice and what remains is only the dispute about the penalty - impugned order is set aside and the service tax paid with interest is confirmed as paid correctly and penalties imposed are set aside by invoking the provisions of Section 80 of Finance Act, 1994 - Decided in favour of assessee.

Summary

Issues:
1. Calculation of service tax payable and short-payment.
2. Imposition of penalties under Sections 76 and 78 of the Finance Act, 1994.
3. Benefit of abatement under notification No.9/2004.
4. Allegations of suppression with intent to evade payment of service tax.
5. Remand by Commissioner (A) and applicability of Section 80 of the Finance Act, 1994.

Calculation of service tax payable and short-payment:
The appellant, engaged in providing rent-a-cab service, had shown total amount received for services in ST-3 returns as Rs.25,75,771/-, with service tax payable as Rs.26,645/-. However, during an audit, it was discovered that there was a short-payment of Rs.78,446/-. The appellant paid the entire amount of service tax and interest after a show-cause notice was issued. The original adjudicating authority confirmed the demand of service tax with interest and imposed penalties under Sections 76 and 78 of the Finance Act, 1994.

Imposition of penalties under Sections 76 and 78 of the Finance Act, 1994:
The Commissioner (A) remanded the matter to the original adjudicating authority for a speaking order. The Commissioner observed that there was no clear finding regarding suppression, and no suppression could be alleged warranting imposition of equivalent penalty. The order-in-original was set aside, directing the lower authority to issue a speaking order following principles of natural justice.

Benefit of abatement under notification No.9/2004:
The Commissioner (A) noted that the benefit of abatement under notification No.9/2004 was not available to the appellant. However, it was also highlighted that there was no corroboration established for suppression with intent to evade payment of service tax by the appellant.

Allegations of suppression with intent to evade payment of service tax:
The Commissioner (A) found no clear finding of suppression and opined that no suppression could be alleged, leading to the imposition of penalty under Section 78 of the Finance Act, 1994. The appellant argued that there was no suppression as the entire amount of service charges was declared, and the mistake was in the calculation of service tax.

Remand by Commissioner (A) and applicability of Section 80 of the Finance Act, 1994:
The appellant contended against the remand by the Commissioner (A) following the decision of the Hon'ble Supreme Court in a specific case. The Tribunal held that since there was no appeal by the department, and findings indicated no suppression or mis-declaration, it was a fit case for waiver of penalty under Section 80 of the Finance Act, 1994. The impugned order was set aside, confirming the correct payment of service tax with interest and setting aside the penalties imposed.

This detailed analysis of the judgment covers the issues related to the calculation of service tax payable, imposition of penalties, benefit of abatement, allegations of suppression, and the remand by the Commissioner (A) along with the applicability of Section 80 of the Finance Act, 1994.