2015 (11) TMI 656 - AT - Service Tax

Imposition of interest and penalty imposed on the appellant under Section 75, 76, 77 and 78 - management, maintenance or Repair service - Held that - Appellant paid total service tax amount well before the issuance of show cause notice. I find that the appellant though did not pay service tax at the relevant time but also not collected the service tax from the service recipient. - department should not have issued the show cause notice Section 73(3) of the Finance Act, 1994, consequently no show cause notice is to be issued, no penalty can be imposed. I also carefully considered the status of the appellant who is small time service provider, major portion of service charges approx, 85 % is expenditure towards the salary, PF paid to the labourer deployed by them for providing the service therefore taking into consideration over all position of the of the appellant and their conduct, I find that the appellant has made out fit case for waiver of penalty not only under Section 73(3) but also Section 80 of the Finance Act 1994. - Decided in favour of assessee.

Summary

Issues Involved:
- Appeal against Order-in-Appeal upholding interest and penalties under Sections 75, 76, 77, and 78 of the Finance Act, 1994.
- Appellant's contention for waiver of penalties due to financial constraints and lack of awareness of service tax liability.
- Consideration of judgments and applicability in the present case.
- Decision on the waiver of penalties under Sections 77 and 78 invoking Section 73(3)/Section 80 of the Finance Act, 1994.

Detailed Analysis:

1. Background and Facts: The appeal was filed against the Order-in-Appeal upholding interest and penalties imposed by the adjudicating authority under Sections 75, 76, 77, and 78 of the Finance Act, 1994. The appellant provided management, maintenance, or repair services without paying the service tax. After being pointed out by Range Officers, the appellant registered as a service provider and paid the entire service tax amounting to Rs. 4,27,833. A show cause notice was issued for recovery and imposition of penalties.

2. Appellant's Arguments: The appellant contended for the waiver of penalties imposed due to financial constraints, claiming the service tax could not be paid on time. The appellant was under the impression that only a portion of the service charges was taxable, as they believed they were a small-scale service provider. The appellant cited judgments in support of their case.

3. Decision on Penalties: The Tribunal considered the appellant's submission and the judgments cited. It noted that the appellant paid the total service tax before the issuance of the show cause notice and did not collect service tax from the recipients. The Tribunal found that the appellant's lack of awareness of the service tax liability was genuine. Considering the appellant's status as a small-time service provider and their conduct, the Tribunal held that penalties under Sections 77 and 78 should be waived.

4. Final Order: The Tribunal upheld the service tax demand and interest under Section 75 but waived the penalties under Sections 77 and 78. The decision was based on the appellant's prompt payment of service tax upon being informed, their genuine belief about the tax liability, and their overall conduct as a small-scale service provider.

In conclusion, the Tribunal allowed the appeal, upholding the service tax demand and interest while waiving the penalties imposed under Sections 77 and 78 of the Finance Act, 1994.