2015 (11) TMI 782 - AT - Service Tax

Penalty u/s 76 & 77 - whether penalties imposed upon the appellant under Section 76 & 77 of the Finance Act, 1994 are justified when appellant has paid the entire differential service tax along with interest before issue of Show Cause Notice - Held that - Recipient of the services informed appellant that rate of duty on Works Contract Services as per Notification No.32/2007-ST dt.22.5.2007 was 2%. It is not brought out by the Revenue that appellant was aware of the fact that service tax of 4% as per Notification No.7/2008-ST dt.1.3.2008 was required to be paid and deliberately paid tax at 2%. Proper ST-3 returns were filed by the appellant showing rate of service tax as 2% which in effect was 4%. Appellant disclosed the correct value of services provided in the returns. Appellant also wrote to the service recipient on 16.10.2009 to pay the differential service tax, but subsequently paid the same suo-moto on 19.10.2009 and intimated the department. Even if appellant came to know of a Show Cause Notice being issued then also the fact remains that the entire differential service tax was paid along with interest. Even otherwise also from the returns filed Revenue would have given appellant a demand. As no penalty under Section 78 was imposed by the Adjudicating authority appellant s conduct of paying entire differential service tax along with interest, before the issue of Show Cause Notice or on the date of Show Cause Notice, will have to be appreciated. - Decided in favour of assessee.

Summary

Issues:
Penalties under Section 76 & 77 justified?
Appellant's claim of immunity under Section 73(3) of the Finance Act, 1994 valid?

Analysis:

The appeal was filed against the Order-in-Appeal rejecting the appellant's claim for immunity from penalty under Section 73(3) of the Finance Act, 1994. The appellant had paid the entire differential service tax liability on works contract services along with interest before the issuance of the show cause notice. The main argument presented was that the appellant was misled by the service recipient regarding the applicable service tax rate, leading to the underpayment. The appellant contended that they promptly rectified the error upon becoming aware of the correct rate, even before the show cause notice was served.

The appellant's consultant argued that the appellant acted in good faith and made the payment without waiting for the service recipient to pay the differential amount. It was emphasized that proper ST-3 returns were filed, disclosing the service tax paid at the rate of 2%, which was later corrected to 4%. The appellant's proactive approach in rectifying the underpayment was highlighted, along with the correspondence with the service recipient indicating the misunderstanding regarding the tax rate.

On the other hand, the Revenue argued that the appellant only made the payment upon learning about the show cause notice, implying that the payment was not voluntary. The Revenue contended that the rejection of immunity under Section 73(3) was justified based on this timeline of events.

After considering the arguments and examining the case records, the Tribunal observed that no penalty was imposed under Section 78 of the Finance Act, 1994. It was noted that the appellant had disclosed the correct value of services in the returns and had a reasonable cause for the initial underpayment due to the misinformation from the service recipient. The Tribunal found that the appellant's conduct of paying the entire differential service tax along with interest before or on the date of the show cause notice was commendable. Additionally, it was highlighted that the appellant's case fell within the purview of Section 73(3) and Section 80 of the Finance Act, 1994.

Ultimately, the Tribunal allowed the appeal, setting aside the Order-in-Appeal passed by the first appellate authority. The decision was based on the appreciation of the appellant's proactive rectification of the underpayment, the absence of penalties under Section 78, and the application of relevant provisions of the Finance Act, 1994 to grant immunity from penalties under Section 73(3).