2015 (11) TMI 524 - AT - Service Tax

Short payment of service tax - security agency services - Penalty u/s 76, 77 & 78 - Imposition of interest - Held that - During audit of the appellant s record such as balance sheet, profit and loss account and ST 3 return. The short payment is due the differences between income shown in balance sheet for the year 2005-06 and ST 3 returns. I find that since actual income was declared in the books of account cannot be intention for evasion of Service Tax. Moreover the appellant paid service tax alongwith interest before issuance of show cause notice. In this case merely because the appellant is not challenging extended period cannot be said that they have admitted the suppression of facts. The appellant time and again before lower authority and as well as before this Tribunal contesting the penalty only on ground that there is no suppression of fact with intent to evade payment of service tax. I am of the opinion that the appellant is having better conduct as compared to the assessees who never pay the service tax and contest service tax as well as penalties only for sake of litigate matter and evade payment of service tax. - since the appellant have paid service tax alongwith interest before issuance of show cause notice and the details were correctly declared in the books of accounts. I find that appellant has made out case for immunity in terms of 73(3) of Finance Act, 1994. In view of my above discussion, I set aside the penalties under Section 76, 77 and 78. However demand of service tax and payment thereof alongwith interest is upheld - Decided in favour of assessee.

Summary

Issues:
1. Appellant engaged in providing security agency services short paid service tax.
2. Appropriation of service tax paid and imposition of penalties.
3. Appeal against penalties imposed under Sections 76, 77, and 78.
4. Invocation of Section 73(3) of the Finance Act, 1994 for waiver of penalties.
5. Adjudication of suppression of facts with intent to evade payment of service tax.

Analysis:
1. The appellant, engaged in providing security agency services, was found to have short paid service tax during the audit. The difference in income declared in the balance sheet for 2005-06 and the ST 3 returns led to the observation of short payment. However, the appellant informed the department that they had paid the outstanding service tax. The adjudicating authority then imposed penalties under Sections 76, 77, and 78 along with interest. The appellant appealed against the penalties imposed, contesting the suppression of facts with intent to evade payment of service tax.

2. The Ld. Examiner appearing for the Revenue argued that the extended period was invoked due to suppression of facts, collusion, or fraud, and thus, the immunity under Section 73(3) of the Finance Act, 1994 could not be extended to the appellant. Citing a Tribunal judgment, it was contended that when the demand is for an extended period and not challenged, it implies an admission of suppression of facts, warranting the imposition of penalties under Section 78.

3. Upon careful consideration, the Tribunal found that the appellant had paid the service tax along with interest before the issuance of the show cause notice. The income was correctly declared in the books of accounts, indicating no intention to evade service tax. The appellant consistently contested the penalties on the grounds of no suppression of facts. Referring to a Karnataka High Court judgment, the Tribunal concluded that the appellant's conduct, payment of service tax, and accurate declaration of details warranted immunity under Section 73(3). Consequently, the penalties under Sections 76, 77, and 78 were set aside, while the demand for service tax and interest payment were upheld.

4. The Tribunal's decision was based on the appellant's timely payment of service tax, accurate income declaration, and consistent contestation of penalties on the grounds of no suppression of facts. The judgment highlighted the importance of compliance and transparency in tax matters, ultimately granting the appellant immunity from penalties under the Finance Act, 1994.

5. In conclusion, the Tribunal allowed the appeal in favor of the appellant, setting aside the penalties under Sections 76, 77, and 78 while upholding the demand for service tax and interest payment. The decision emphasized the significance of timely tax payment and accurate record-keeping in demonstrating compliance with tax regulations.