2015 (12) TMI 152 - AT - Service Tax

Demand of service tax - Manpower Recruitment or Supply Agency services - imposition of penalty - Held that - Neither any specific allegations have been made in the show cause notice nor any findings recorded in the impugned order that non-payment of service tax by the appellant within the stipulated time-frame, is on account of any wilful suppression or mis-statement of facts, with intent to evade payment of service tax. Further, I find that the original authority in the adjudication order dated 2-5-2011 has refrained himself from imposing penalty under Section 78, by invoking provisions of Section 80 of the Act, which clearly demonstrates that non-payment of service tax by the appellant was not due to wilful suppression coupled with the intention to evade payment of service tax - In the absence of any wilful suppression, etc., on the part of the appellant to defraud the Govt. revenue, I am of the opinion that Section 73(3) of the Act will have application in the present case, for non-initiation of any proceedings for recovery of the penalty amount, in view of the fact that the service tax along with interest has been paid by the appellant, before issue of the show cause notice. - Decided in favour of assessee.

Summary

Issues:
- Appeal against penalty imposed under Section 78 of the Finance Act, 1994 upheld by Commissioner of Central Excise (Appeals-II), Bangalore.

Analysis:
1. Background: The appeal was filed against an order upholding a penalty imposed under Section 78 of the Finance Act, 1994 by the Commissioner of Central Excise (Appeals-II), Bangalore. The appellant had not paid service tax on "Manpower Recruitment or Supply Agency" services for the period 2005-06 to 2006-07, which was later paid with interest after being pointed out by the audit wing.

2. Allegations and Adjudication: The Central Excise Department issued a show cause notice to the appellant for late payment of service tax. The lower authority confirmed the service tax demand along with interest but dropped the proposal for penalty imposition. The Department appealed, arguing that there was suppression of facts with intent to evade payment of duty, justifying penalty imposition. The Commissioner (Appeals) allowed the appeal, confirming the penal liability.

3. Tribunal Hearing: The Tribunal heard the counsels of both parties and examined the records.

4. Findings: The Tribunal noted that the show cause notice and the impugned order did not specify any wilful suppression or misstatement of facts by the appellant to evade service tax payment. The original authority refrained from imposing penalty under Section 78, invoking Section 80 of the Act, indicating the absence of wilful suppression to evade payment.

5. Legal Interpretation: As there was no evidence of wilful suppression to defraud the government revenue, the Tribunal applied Section 73(3) of the Act, which deals with non-initiation of penalty recovery proceedings if service tax along with interest is paid before the show cause notice.

6. Decision: Considering the lack of wilful suppression, the Tribunal found no merit in the impugned order. The appeal was allowed in favor of the appellant, waiving the pre-deposit requirement.

This detailed analysis of the legal judgment highlights the key issues, arguments presented, findings, legal interpretations, and the final decision reached by the Appellate Tribunal CESTAT Bangalore in the case.