2016 (1) TMI 668 - AT - Service Tax

Penalty imposed under Section 78, and also under Section 76 and 70 - service tax was paid before issuance of SCN - Held that - Considering that the appellant is a proprietorship concern and the services were rendered to a Private Limited Company in organised sector and the services were duly recorded in the books of accounts, and also considering the financial difficulties of the proprietorship concern and the fact that they have paid the amount of ₹ 7,43,141/- before issuance of show cause notice, we consider that imposition of penalties under Section 76 and Section 70 are not warranted in the present case, especially so since equivalent penalty has been imposed under Section 78 of the Finance Act, 1994. We find that the original adjudicating had already offered the appellant the option to pay 25% of the equivalent penalty imposed under Section 78, subject to the conditions prescribed under the provisions of Section 78 of the Finance Act, 1994. Therefore, we uphold the impugned order-in-original with regard to imposition of penalty under Section 78. However, we set-aside the penalties imposed under Sections 76 and 70 of the Finance Act, 1994. - Decided partly in favour of assessee.

Summary

Issues:
- Liability of service tax and interest payment
- Imposition of penalties under Sections 76, 70, and 78 of the Finance Act, 1994

Liability of Service Tax and Interest Payment:
The appellant, a service provider, had not paid the Service Tax due to the department from 2007 to September 2011. The original adjudicating authority confirmed the service tax liability along with interest. The Commissioner (Appeals) upheld the decision. The appellant did not contest the liability and had paid part of the amount before the show cause notice. The appellant cited ignorance of provisions, confusion about tax liability, and financial difficulties as reasons for non-payment. The Revenue argued that the appellant had collected the full amount from the service recipient, including the service tax component, and penalties were justified. The Tribunal found that the lower authorities had considered the appellant's submissions and upheld the service tax liability and interest payment.

Imposition of Penalties under Sections 76, 70, and 78:
The Commissioner (Appeals) noted that the appellant had not deposited the tax amount due to financial difficulties and had not filed returns or paid tax liabilities since 2007. The appellant's plea of financial hardships was not considered sufficient to avoid penalties. The Commissioner upheld the penalties under Sections 76 and 78, citing willful misstatement and suppression of facts to evade tax payment. The Tribunal, however, acknowledged the appellant's financial difficulties, previous payments, and the fact that penalties under Section 78 were already imposed. Therefore, the penalties under Sections 76 and 70 were set aside, while the penalty under Section 78 was upheld. The impugned Order-in-Original was modified accordingly.

In conclusion, the Tribunal upheld the service tax liability and interest payment but set aside penalties under Sections 76 and 70, while upholding the penalty under Section 78. The appeal was disposed of in this manner.