2008 (5) TMI 114 - AT - Service Tax

Security services penalty imposed for short payment of service tax - bona fide belief that the service tax was not payable inasmuch as services rendered to Official Liquidator of High Court - appellants plea of bona fide cannot be ignored - appellants have deposited the duty amount as also the Interest immediately on detection by the Department - penalties imposed upon the appellants are set aside by invoking section 80

Summary

Issues:
1. Short payment of service tax due to discrepancy in ST-3 return and balance sheet.
2. Imposition of penalty under Sections 76 and 78 of the Act.
3. Bona fide belief of non-liability to pay service tax for services provided to Official Liquidator.
4. Application of Section 80 of the Finance Act, 1994 to waive penalties.

Analysis:
1. The appellant, engaged in providing security services, had a shortfall in service tax payment amounting to Rs. 6,34,945 due to discrepancies between the value of services in their ST-3 return and balance sheet. The Director admitted the omission of services provided to the office of the Official Liquidator from the returns, leading to the underpayment. The appellant rectified the error by paying the outstanding tax and interest in March and April 2005.

2. Proceedings were initiated against the appellant for the shortfall, resulting in the imposition of penalties under Sections 76 and 78 of the Act by the Adjudicating Authority. The penalties included a daily penalty under Section 76 and a penalty of Rs. 6,34,945 under Section 78. The Commissioner (Appeals) upheld the penalties, but provided a reduction to 25% if the dues were paid within 30 days.

3. The appellants argued that they genuinely believed no service tax was payable for services to the Official Liquidator, as other security agencies in similar situations were not paying service tax. They cited a High Court decision supporting their belief and contended that they cooperated by promptly paying the tax upon detection. They invoked Section 80 of the Finance Act, 1994, to request the waiver of penalties based on their bona fide belief.

4. The Tribunal acknowledged the appellant's bona fide belief regarding the non-liability to pay service tax for services to the Official Liquidator, especially considering the practices of other agencies in similar situations. The immediate payment of the due tax and interest upon detection further supported the appellant's argument. Consequently, the Tribunal invoked Section 80 to set aside the penalties imposed on the appellants, ruling in their favor and disposing of the appeal accordingly.