2018 (5) TMI 2063 - AT - Service Tax

Levy of penalty u/s 77 and 78 of FA - Non-payment of service tax - Renting of Immovable Property Service - Transportation of Goods by Road Service - conscious suppression of facts or not - reverse charge mechanism - HELD THAT - The main allegation is that on scrutiny of records it was revealed that the appellant had not paid service tax on Renting of Immovable Property Service and Transportation of Goods by Road Service . It has also been alleged that the appellant has consciously suppressed the fact from the Department - the allegation against the appellant for invocation of Section 78 of the Finance Act 1994 is without any material on record. It is well settled that the Department has to place some material on record of suppression of facts with intent to evade payment of service tax etc. In the present case the appellant paid the taxes before issuance of the show cause notice and therefore imposition of penalty under Section 78 of the Act is not warranted. The impugned order is modified to the extent that penalty under Section 78 is set aside and penalty under Section 77 is upheld - Appeal allowed in part.

Summary

Issues: Alleged non-payment of service tax under reverse charge mechanism for transportation of goods by road service and renting of immovable property service, imposition of penalties under Sections 77 and 78 of the Finance Act, 1994, appellant's claim of excess payment of service tax.

Analysis:
1. Non-payment of Service Tax: The appellant, an Export House, was alleged to have failed to pay service tax under reverse charge mechanism for transportation of goods by road service and renting of immovable property service for multiple financial years. However, the appellant contended that they had already paid the service tax along with interest and penalty before the issuance of the show cause notice. The Tribunal noted that the taxes were indeed paid before the notice, as acknowledged in the show cause notice and the Order-in-Original. The Department's allegation of conscious suppression of facts was also considered, but the Tribunal found no material on record to support invoking Section 78 of the Finance Act, 1994, as the taxes were paid in advance.

2. Imposition of Penalties: While the imposition of penalty under Section 77 of the Finance Act, 1994 was upheld by the Tribunal, the penalty under Section 78 was set aside. It was emphasized that for penalty under Section 78, there must be evidence of suppression of facts with intent to evade payment, which was lacking in this case due to the advance payment of taxes. The Tribunal agreed with the Department on the penalty under Section 77, emphasizing the importance of compliance with tax regulations.

3. Excess Payment Claim: The appellant asserted that they had made an excess payment of service tax, particularly in the context of renting of immovable property service. The Tribunal directed the matter to be remanded to the Adjudicating Authority for verification and reconciliation of documents to assess the validity of the excess payment claim. This step was deemed necessary to ensure fairness and accuracy in determining the actual tax liability of the appellant.

In conclusion, the Tribunal modified the impugned order by setting aside the penalty under Section 78, upholding the penalty under Section 77, and remanding the excess payment claim for further verification. The appeal filed by the appellant was disposed of with these directions, emphasizing the importance of adherence to tax laws and proper verification of tax liabilities.