2015 (11) TMI 658 - AT - Service Tax

Penalties under Section 76, 77 and 78 - Service of repair and maintenance of roads and survey and map making services - Held that - As regard penalty commensurate to the service tax of management, maintenance or repair of roads the service tax liability was not maintainable in view of the retrospective amendment made under Section 97 of the Finance Act, 2012. For this reason itself appellant is not liable for any penalty, therefore penalty under Section 76, 77 and 78 are dropped. - transaction were recorded in their books of account, therefore they had no intention to evade service tax. Moreover, immediately on pointed out by the department, payment of service tax alongwith interest was admittedly made by the appellant and there is no contest thereon, they have made out fit case for waiver of penalty under Section 73(3) - I set aside penalties imposed under Section 76, 77 and 78 however demand of Service tax on both the services confirmed by the lower authority and admittedly paid by the appellant is maintained. - Decided in favour of assessee.

Summary

Issues:
1. Upholding of penalties and rejection of appeal for waiver of penalties under Section 76, 77, and 78 of Finance Act, 1994.
2. Applicability of penalties on service tax demand for management, maintenance, or repair of roads and survey and map making services.
3. Contestation of penalties based on retrospective amendments and non-suppression of facts by the appellant.
4. Interpretation of Section 73(3) of Finance Act, 1994 in relation to waiver of penalties.

Analysis:
1. The appeal was against the Order-in-Appeal upholding penalties and rejecting the appellant's appeal for waiver of penalties under Section 76, 77, and 78 of the Finance Act, 1994. The appellant, engaged in road repair and survey services, was found not paying service tax. The Commissioner (Appeals) confirmed penalties, leading to the appeal.

2. The appellant contested the penalties on service tax demand for road repair and survey services. The appellant had paid the demanded amounts before the show cause notice, citing retrospective exemption for road services under Section 97 of the Finance Act, 2012. The appellant did not challenge the tax liability but argued against the penalties, claiming no intention to evade taxes and citing recorded transactions.

3. The Assistant Commissioner argued for upholding penalties due to non-disclosure of transactions in returns and non-compliance. However, the Tribunal found the appellant's arguments valid. The Tribunal ruled that the appellant was not liable for penalties related to road services due to the retrospective amendment. For survey services, the appellant's immediate payment post-notice indicated no intention to evade taxes, aligning with Section 73(3) of the Finance Act, 1994.

4. The Tribunal interpreted Section 73(3) to support the appellant's case, emphasizing that when the service tax is voluntarily paid without contest, no show cause notice should be issued. Consequently, the penalties under Section 76, 77, and 78 were set aside, while the confirmed service tax demands were upheld. The appeal was allowed, and the impugned order was set aside.

Conclusion:
The Tribunal ruled in favor of the appellant, dropping penalties related to road services due to retrospective amendments and waiving penalties for survey services under Section 73(3) of the Finance Act, 1994. The confirmed service tax demands were maintained, and the appeal was allowed.