2015 (12) TMI 330 - AT - Service Tax

Demand of service tax - penalty imposed under Section 77 and 78 - service of man power recruitment and supply agency - Held that - Respondent has deposited tax liability alongwith interest admittedly. The respondent is small labour contractor and he born the tax liability by himself which he has not recovered from the service recipients. These are the sufficient cause to invoke Section 80 for waiver of penalty imposed under Section 77 and 78 of the Finance Act, 1994. In my considered view the Ld. Commissioner (Appeals) correctly held that the respondent is not liable for any penalty. I do not find any infirmity in the findings of the Ld. Commissioner(Appeals) in dropping the penalty under Section 77 and 78 of the Finance Act, 1944, I therefore uphold the impugned order. - Decided against Revenue.

Summary

Issues:
Appeal against order upholding service tax demand, interest, and setting aside penalty under Section 77 and 78 of the Finance Act, 1994.

Analysis:

1. Service Tax Demand and Penalty Imposition:
The appeal was against the Order-in-Appeal upholding the demand of service tax and interest while setting aside the penalty imposed under Section 77 and 78 of the Finance Act, 1994. The respondent, a small-time service provider as a labor contractor, was found to have not paid service tax amounting to Rs. 16,24,983. The Asstt. Commissioner confirmed the demand, interest, and imposed a penalty. The respondent paid the entire service tax and interest but appealed against the penalty. The Ld. Commissioner(Appeals) upheld the demand and interest but set aside the penalty, leading to the Revenue's appeal.

2. Revenue's Argument:
The Revenue argued that the Ld. Commissioner(Appeals) did not provide a satisfactory explanation for setting aside the penalties. They contended that the service tax paid by the respondent was not eligible for input credit, making the transaction not revenue neutral. Citing a Supreme Court judgment, the Revenue emphasized that the Commissioner had no authority to reduce or waive the penalty under Section 78 of the Finance Act, 1994.

3. Respondent's Defense:
On the other hand, the respondent's counsel argued that the Ld. Commissioner(Appeals) considered various aspects beyond revenue neutrality, such as the respondent's prompt payment of the entire service tax and interest from the start of the investigation. The respondent, a financially struggling labor contractor, did not recover the service tax amount from clients and paid it from personal funds. They invoked Section 80, stating that the penalty under Section 77 and 78 should not apply due to sufficient cause. Additionally, they distinguished a Supreme Court judgment, asserting that Section 80 of the Finance Act, 1994 allowed for penalty waiver based on sufficient cause unlike the Central Excise Act, 1944.

4. Tribunal's Decision:
After considering both arguments and the records, the Tribunal noted that the respondent had paid the tax liability and interest without recovering it from clients, justifying the application of Section 80 for penalty waiver. The Tribunal agreed with the Ld. Commissioner(Appeals) that the respondent was not liable for penalties under Section 77 and 78 of the Finance Act, 1994. Consequently, the Tribunal upheld the impugned order and dismissed the Revenue's appeal.