2008 (8) TMI 54 - AT - Service Tax

Non-payment of tax - bona fide belief that they were not required to pay the tax to the exchequer unless they had obtained the same from their clients - appellant made the payment of dues promptly before issue of show-cause notice - penalty imposed u/s 76 is reduced - penalty u/s 78 is set aside - demand of interest is sustained

Summary

Issues:
- Appellants' liability for service tax, interest, and penalties
- Applicability of waiver of penalty in certain circumstances
- Discretion of authorities in imposing penalties under sections 76 and 78 of the Act

Analysis:

Issue 1: Appellants' liability for service tax, interest, and penalties
The case involved M/s. Faithful Security Services (FSS) who provided security services from 4/2000 to 3/2004. The Coimbatore Central Excise Commissionerate found that FSS had only paid service tax when collected from customers. The original authority confirmed a demand of Rs. 8,09,486 as short-paid service tax, along with interest and penalties under sections 76 and 78 of the Act. The lower appellate authority upheld this decision, leading to the current appeal challenging the interest and penalties imposed.

Issue 2: Applicability of waiver of penalty
The appellants argued that they had paid the service tax before the show-cause notice was issued, citing a Tribunal decision that disallowed interest and penalties in such cases. They also highlighted a previous Tribunal order supporting penalty waiver in similar circumstances. The department countered, stating that the law changed in 1998, and reliance on pre-2001 judgments was misplaced. They referred to a High Court judgment clarifying penalty imposition under section 11AC and its application to sections 76 and 78 penalties.

Issue 3: Discretion of authorities in imposing penalties
The Member (Technical) analyzed the case, acknowledging the appellants' belief but noting the change in tax liability laws in 1998. Despite the lapse in compliance, the appellants promptly paid the dues before the show-cause notice. Considering this, the Member found leniency appropriate in reducing the penalty imposed. Citing relevant judgments, the Member exercised discretion to reduce the penalty under section 76 to Rs. 2 lakhs and set aside the penalty under section 78. The demand for interest was upheld, and the appeal was allowed to this extent, with the stay application also disposed of.

In conclusion, the judgment addressed the issues of service tax liability, waiver of penalties, and the discretion of authorities in penalty imposition, providing a detailed analysis of the facts, arguments, and legal precedents to arrive at a decision favoring reduced penalties for the appellants.