2015 (8) TMI 1011 - AT - Service Tax

Security services - appellant neither obtained registration, filed returns nor remitted service tax - Cum tax benefit - Held that - The appellant failed to produce any material, either before the primary or the lower appellate authority in support of its plea of having received a lesser amount as consideration than what was billed. No material was also produced before the authorities below in support of its claim that ₹ 3,81,691/- was for rendition of construction service and not security service. A mere plea without probative evidence in support of such plea would not suffice. - appellant shall be entitled to cum-tax benefit. The authorities below have confirmed imposition of penalties under Section 76 and 78 as well. In view of several decisions it is clear that there is a discretion available, even prior to amendment of Section 78 for not imposing penalties under Sections 76 & 78 simultaneously. We therefore set aside imposition of penalty under Section 76 and confirm penalty under Section 78. Section 78 also requires that the assessee should be informed of the facility of remitting service tax and interest along with 25% of penalty within 30 days towards compliance of liability - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
1. Allegation of rendition of security service without registration and payment of service tax.
2. Failure to provide supporting documents for claimed transactions.
3. Dispute regarding liability for service tax on consideration received.
4. Plea for cum-tax benefit and penalty imposition.

Analysis:
1. The appellant was served a show cause notice for allegedly providing security services without registration and not remitting service tax on the consideration received. The Deputy Commissioner confirmed a service tax demand of &8377; 1,92,373/- along with penalties and interest.

2. The appellant claimed to have remitted some service tax and received only a part of the billed amount for services rendered. However, the appellant failed to provide any transactional documents or evidence to support these claims, leading to the dismissal of the appeal by the Ld. Commissioner.

3. The appellant argued ignorance of legal provisions for not obtaining registration and filing returns in time. The appellant also contended that service tax should be levied on the actual amount received, not the billed amount, and requested cum-tax benefit. The appellant claimed that a portion of the consideration received was for construction activities, not security services.

4. The Tribunal found no grounds to interfere with the classification of services as security services. While accepting the plea for cum-tax benefit, the Tribunal set aside the penalty under Section 76 and confirmed the penalty under Section 78. The appellant was directed to recompute the liability after granting cum-tax benefit and remit the determined amount within 30 days.

In conclusion, the appeal was partly allowed with no costs imposed. The Tribunal emphasized the importance of providing probative evidence to support claims and upheld the imposition of penalties under Section 78 while setting aside the penalty under Section 76.