2015 (11) TMI 844 - HC - Service Tax

Penalty u/s 78 - Business Support Services - non payment of service tax - Whether the imposition of penalty was justifiable when a categorical finding has been given that the appellant does not provide any service as provided under section 65 (104c) of the Act and consequently no penalty could be imposable under Section 78 of the Act - Held that - The necessary ingredients for levy of penalty is where any service tax has not been paid by reason of fraud, collusion, wilful mis-statement, suppression of facts or contravention of any of the provisions of the Act or the Rules made thereunder with the intent to evade payment of service tax. - categorical finding has been given by the Tribunal that the activity carried on by the appellant is a manufacturing activity which cannot be classified as a business support service nor can the activity of the appellant could be subjected to service tax under Section 65(104c) read with Section 65(105)(zzzq) of the Act. When no service tax is payable or leviable upon the appellant, the question of penalty or imposition of penalty could not arise. - Decided in favour of assessee.

Summary

Issues:
Liability of penalty for non-payment of service tax on certain activities carried out by the appellant.

Analysis:
The dispute in this case revolves around the liability of the appellant to pay a penalty for not paying service tax on activities conducted between April 2007 and March 2010. The Adjudicating Authority determined that the appellant's activities fell under "Business Support Services" as defined in Section 65(104c) of the Finance Act 1994. Consequently, the Authority held the appellant liable for service tax under section 65(105)(zzzq) of the Act and imposed a penalty under section 78 due to the appellant's willful suppression of services to evade duty.

The appellant, dissatisfied with the Adjudicating Authority's decision, appealed to the Tribunal. During the appeal, the appellant sought partial withdrawal concerning the demand for service tax and interest for a specific period. The Tribunal, upon review, concluded that the appellant's activities did not align with "business support services" as defined in the Act. Therefore, the demand for service tax was deemed invalid, and the Tribunal set it aside. However, the Tribunal did not address the imposition of the penalty.

Subsequently, the appellant filed a rectification application regarding the penalty issue, which was rejected on the grounds that the Tribunal lacked the authority to review its own order. The appellant then appealed the decision, posing a substantial legal question: whether the penalty imposition was justifiable when the Tribunal had already determined that the appellant's activities did not fall under the relevant service category.

The Finance Act's Section 78 outlines the conditions for imposing penalties for suppressing the value of taxable services, including instances of fraud, collusion, wilful misstatement, suppression of facts, or contravention of Act provisions to evade service tax payment. In this case, since the Tribunal categorically stated that the appellant's activities did not qualify for service tax under the Act, the question of penalty imposition did not arise.

Consequently, the High Court found that since no service tax was payable by the appellant, the penalty could not be imposed. The appeal was allowed in favor of the appellant, and the Court ruled that the penalty levy failed. The substantial legal question was answered in favor of the appellant, leading to the dismissal of the penalty imposition.