2014 (8) TMI 151 - HC - Service Tax

Levy of penalty - payment of service tax and interest before issuance of SCN - Manpower recruitment and supply agency - Tribunal deleted penalty - Held that - It is true that as per Sub-section (4), penalty may still attach if there is non-payment of Service Tax by reason of fraud, collusion, wilful mis-statement, suppression of facts or contravention of provisions of the statute with intent to evade payment of Service Tax - Since the recipient company had claimed Cenvat credit on the service tax remitted by the assessee, eventually no liability was incurred by the service recipient and amount of service tax remitted by the assessee was also reimbursed by the recipient - where an assessee has paid both the service ax and interest before issuance of a show cause notice under the Act, sub-section 3 of section 73 of the Act, prohibits initiation of proceedings for recovery of penalty - When there is a finding of fact that this was not a case of non-payment of Service Tax with intent to evade the payment of the same, question of applying Sub-section (4) of Section 73 of the Finance Act, 1994 and resultantly exclusion of application of Sub-section (3) thereof, would not arise - Decided against Revenue.

Summary

Issues:
1. Whether the Tribunal erred in quashing the penalty imposed on the respondent?
2. Whether the Tribunal's order was passed without considering the contentions raised by the Department?
3. Whether the Tribunal erred in hearing and passing the impugned order without deciding the appeals filed by the Department?

Analysis:

Issue 1: Quashing of Penalty
The main issue in this case was the deletion of the penalty imposed on the respondent by the Tribunal. The Tribunal relied on Section 73(3) of the Finance Act, 1994, and a decision of the Karnataka High Court to delete the penalty. The Tribunal found that the assessee had paid the tax before the issuance of the Show-cause Notice, which led to the contention that no penalty should be imposed as per Section 73(3) of the Act. The Tribunal accepted this argument, leading to the deletion of the penalty.

Issue 2: Consideration of Department's Contentions
The Department contended that the Tribunal failed to consider Section 73(4) of the Finance Act, 1994, which allows for penalties in cases involving fraud, collusion, wilful misstatement, suppression of facts, or contravention of statutory provisions with intent to evade tax. However, the Tribunal noted that in this case, the recipient company had claimed Cenvat credit on the service tax paid by the assessee, resulting in no liability for the recipient. The Tribunal found no willful suppression of liability or intent to evade tax, citing precedents from the Karnataka High Court, and upheld the deletion of the penalty.

Issue 3: Appeals Filed by the Department
The Department argued that the Tribunal should have considered and decided the appeals filed by them, which arose from the same order passed by the appellate commissioner. The Tribunal, however, found that since there was no intent to evade tax in this case, the provisions of Section 73(4) were not applicable, and therefore, the penalty deletion under Section 73(3) was justified. The Tribunal dismissed the Tax Appeal based on these observations.

In conclusion, the High Court upheld the Tribunal's decision to delete the penalty on the respondent, emphasizing that the facts did not support the application of Section 73(4) of the Finance Act, 1994. The judgment highlights the importance of considering the specific circumstances of each case when determining the applicability of penalty provisions in tax matters.