2015 (11) TMI 1423 - AT - Service Tax

Penalty u/s 78 - Commercial Construction service - Notification No. 1/2006 ST dated 1/3/2006 - Held that - Since on the issue on merit there were conflicting views and finally issue was decided by the Larger Bench of this Tribunal there is reasonable cause of non-payment of service tax on the abatement amount. Therefore in my considered view Ld. Commissioner (Appeals) has rightly waived the penalty under Section 78 invoking Section 80 of Finance Act 1944 - Commissioner(Appeals) has correctly invoked Section 80 and waived the penalty of Section 78 - Decided against Revenue.

Summary

Issues:
1. Whether penalty imposed under Section 78 for non-inclusion of material cost in the gross value of construction services is justified.
2. Whether the respondent is entitled to abatement under Notification No. 1/2006-ST despite not adding the value of material supplied by the service recipient.

Analysis:

Issue 1:
The Revenue appealed against the Order-in-Appeal confirming a demand of Rs. 7,85,904 and waiving the penalty under Section 80 for the appellant's failure to include the cost of materials in the gross value of construction services. The Revenue contended that the penalty under Section 78 was correctly imposed as the appellant undervalued services intentionally, leading to service tax evasion. The Ld. Commissioner (Appeals) upheld the demand but waived the penalty. The Revenue argued that since there was no challenge to the demand, the penalty should not have been waived. The Ld. Counsel for the Revenue cited various judgments to support their position.

Issue 2:
The respondent argued that the crucial issue was whether the value of material supplied by the service recipient should be added for claiming abatement under Notification No. 1/2006-ST. The respondent highlighted the conflicting views on this matter among different Tribunal benches. Referring to the decision in M/s. Bhayana Builders Pvt. Ltd. Vs. CST, the respondent contended that the value of free material need not be added to the gross value for construction services, making them eligible for abatement. The respondent emphasized that the Larger Bench's decision rendered the demand unsustainable and, therefore, penalty under Section 78 should not apply simply because the service tax demand was not challenged.

The Tribunal, after considering both arguments, agreed with the respondent's position. It noted the conflicting views on the issue and the final decision by the Larger Bench in the Bhayana Builders case. The Tribunal found reasonable cause for the non-payment of service tax on the abatement amount due to the uncertainty surrounding the issue. It upheld the Ld. Commissioner (Appeals)'s decision to waive the penalty under Section 80, citing the reasonable cause for the appellant's failure to pay the differential service tax. The Tribunal emphasized that the entire service tax paid was available as CENVAT Credit to the service recipient, making the transaction revenue neutral in the CENVAT chain. Consequently, the Tribunal dismissed the Revenue's appeal, affirming the waiver of the penalty under Section 78.