2015 (8) TMI 28 - AT - Service Tax

Penalty of equal amount under Sections 78, 76, 77 (1)(b), 77(1)(C) of the Finance Act, 1994 and Rule 7C of Service Tax Rules, 1994 - Maintenance or Repair Service - Held that - Appellants had not taken this stand before the lower authorities. This document was not placed before the lower authorities and the same cannot be accepted at this stage. I find that the Appellants already paid the entire amount of tax before issue of Show Cause Notice. They have also collected the Service Tax amount from the customers and not deposited in Central Government account, therefore, penalty under Section 78 is warranted. It is clear case of suppression of facts with intent to evade payment of tax and extended period of limitation would be involved - penalties imposed under other Sections are not warranted. The Tribunal in the case of Prompt Services Vs CCE Bolpur - 2011 (5) TMI 805 - CESTAT, KOLKATA on the identical issue held that penalty only under one Section is sufficient and adequate deterrent - demand of Service Tax alongwith interest and the penalty under Section 78 are upheld and other penalties set aside - Decided in favour of assessee.

Summary

Issues:
Demand of Service Tax, Limitation of Demand, Penalties under Sections 78, 76, 77 (1)(b), 77(1)(C) of the Finance Act, 1994 and Rule 7C of Service Tax Rules, 1994, Tax liability on material portion, Suppression of facts to evade payment of tax, Applicability of penalties under different Sections.

Analysis:
1. Demand of Service Tax: The Appellant appealed against the demand of Service Tax amounting to Rs. 8,62,338.00, along with interest and penalties under various sections of the Finance Act, 1994 and Service Tax Rules, 1994. The tax was demanded for the category of "Maintenance or Repair Service" for the period April 2006 to March 2011.

2. Limitation of Demand and Penalties: The Assessee did not contest the demand of Service Tax on merit but argued that the demand was time-barred and penalties should be set aside due to acting on a bonafide belief. The Appellant had already paid the entire tax amount along with interest. The contention was made that they were not liable to pay tax on a material portion.

3. Suppression of Facts and Tax Liability: The Revenue argued that the Appellant had collected tax from clients but failed to deposit it with the Government. It was also highlighted that the Appellant had obtained a registration certificate but had not filed the required ST-3 return.

4. Decision on Penalties and Tax Liability: After considering the arguments from both sides and examining the records, it was found that the Appellant had obtained the Service Tax registration but failed to file the ST-3 return. The Appellant had started charging and collecting Service Tax only after obtaining registration. The Tribunal noted that the Appellants had already paid the tax before the Show Cause Notice was issued and had collected Service Tax from customers but not deposited it with the Government, leading to a clear case of suppression of facts to evade tax payment.

5. Judgment on Penalties: The Tribunal upheld the demand of Service Tax with interest and penalty under Section 78, stating that it was a clear case of suppression of facts with intent to evade tax payment. However, penalties under other Sections were set aside, considering the overall circumstances of the case. Referring to a previous case, it was held that penalty under one Section was sufficient as a deterrent.

6. Final Decision: The appeal filed by the Appellant was disposed of with the demand of Service Tax along with interest and penalty under Section 78 being upheld, while other penalties were set aside based on the facts and circumstances of the case.