2016 (5) TMI 231 - AT - Service Tax

Extended Period of limitation - Demand of Service tax alongwith interest - Business Auxiliary Service - No concrete and sufficient evidence against the appellant - Held that - If according to the appellant service tax liability was not attracted then also they should have deposited the amount with the department as an amount recovered in the guise of duty. Alternatively, appellant was expected to get in touch with the department for seeking any clarification /course of action. In the light of these facts extended period of limitation was correctly applied when confirming the demand and interest against the appellant. Appeal of the appellant to that extent is rejected. Waiver of penalty under Section 80 - Appellant argued that even if extended period is held to be applicable then also penalties imposed upon the appellant are required to be waived as per the provisions of Section 80 of the Finance Act, 1994 - Held that - it is the case of the appellant under Section 80 that they were under the impression the services provided to Govt. departments do not attract service tax because the nature of works specified in definition of Commercial or Industrial Construction, under Section 65(25 b) of the Finance Act, 1994 are normally carried out by Govt./Govt. departments. It is observed that works relating to Roads, Airports, Railway, Bridges, Tunnels and Dams under Commercial or Industrial constructions specified under Section 65(25 b) are normally carried out by Govt./Govt. departments. Appellant thus had a reasonable cause for not discharging Service Tax liability. Appellant has thus a case for waiver of penalties imposed under Section 77(2) and Section 78 of the Finance Act, 1994. - Decided partly in favour of appellant

Summary

Issues:
- Time-barred demand
- Waiver of penalties under Section 80 of the Finance Act, 1994

Analysis:
1. Time-barred demand:
The appellant contested the demand, arguing that it was time-barred as it was issued after the normal period of demand, claiming no intention to evade duty. The Adjudicating authority confirmed a demand of &8377; 9,75,010/- for Business Auxiliary Service. The Revenue argued that the extended period of 5 years applied, supported by evidence that the appellant was aware of the service tax liability and, in some cases, received reimbursement from service recipients. The bench upheld the extended period, stating that even if the service tax liability was disputed, the appellant should have deposited the amount or sought clarification. Consequently, the demand and interest against the appellant were confirmed.

2. Waiver of penalties under Section 80 of the Finance Act, 1994:
The appellant sought waiver of penalties under Section 80, citing a bonafide belief that services provided to government agencies were exempt from service tax under the definition of "Commercial or Industrial Construction" services. The appellant argued that since such works are typically carried out by government departments, they had a reasonable cause for not discharging the service tax liability. The Tribunal agreed with the appellant's argument, finding that the appellant had a valid case for waiver of penalties imposed under Section 77(2) and Section 78 of the Finance Act, 1994. Consequently, the appeal was allowed to the extent indicated.

In conclusion, the Tribunal upheld the demand and interest against the appellant due to the extended period of 5 years being applicable. However, the penalties imposed were waived under Section 80 of the Finance Act, 1994, based on the appellant's reasonable cause for not discharging the service tax liability concerning services provided to government departments.