2017 (11) TMI 1733 - AT - Service Tax

Penalty u/s 76 and 78 of FA - Contravention of section 73 of the Finance Act, 1994 - it is alleged that assessee had not disclosed the receipt of services to the department and did not pay the service tax on these services until pointed out by the audit team - Held that - The appellant has paid the service tax liability immediately on pointing out the same by the audit and the appellant has paid the service tax along with interest prior to the issue of show cause notice and therefore the case of the appellant is covered under section 73(3) of Finance Act, 1994 - the revenue has not brought any evidence to show that there was suppression on the part of the appellant - penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Imposition of penalty under section 78 of Finance Act, 1994 for non-payment of service tax on certain services received from overseas service providers.
- Applicability of section 73(3) of Finance Act, 1994 when service tax along with interest is paid before the issue of show cause notice.
- Allegations of suppression on the part of the appellant and invocation of extended period for penalty imposition.
- Consideration of revenue neutrality and absence of willful omission in non-payment of service tax.

Analysis:
1. Imposition of Penalty under Section 78:
The appeal was filed against an order imposing equal penalty under section 78 of the Finance Act, 1994 for non-payment of service tax on various services received from overseas providers. The appellant had paid the service tax along with interest upon detection by the audit team, but the department alleged that the appellant had not disclosed the receipt of services and thus was liable for penalty under sections 76 & 78 of the Act.

2. Applicability of Section 73(3) of Finance Act, 1994:
The appellant argued that the impugned order contradicted a binding decision by the Tribunal and contended that the payment of service tax along with interest before the issuance of the show cause notice should exempt them from penalty imposition. Citing relevant case laws, the appellant asserted that section 73(3) of the Finance Act, 1994 should apply in their case, preventing the issuance of a show cause notice after payment.

3. Allegations of Suppression and Extended Period:
The department alleged suppression on the part of the appellant to evade payment, justifying the invocation of the extended period for penalty imposition. However, the appellant argued that there was no willful omission and that the non-payment was due to oversight and clerical errors. The appellant cited specific cases to support their claim of no malafide intent in the non-payment of service tax.

4. Consideration of Revenue Neutrality and Absence of Willful Omission:
The appellant further contended that the penalty should not be imposed in a revenue-neutral situation, emphasizing that the non-payment was not intentional and did not result in any revenue loss. Citing relevant decisions, the appellant argued that in cases of revenue neutrality and absence of willful omission, penalties should not be levied. The Tribunal, after considering both parties' submissions and relevant precedents, concluded in favor of the appellant, setting aside the impugned order and allowing the appeal based on the applicability of section 73(3) and the absence of suppression and revenue loss.