2016 (6) TMI 777 - AT - Service Tax

Waiver of penalty or benefit of reduced penalty @25% - Construction service in respect of Commercial or Industrial Building and Civil Structure, Construction of Residential Complex and Works Contract Service - bonafide belief - The fact is not under dispute that appellant immediately after pointing out by the department has discharged the service tax alongwith interest within one month and before issuance of show cause notice. The appellant submitted that they were under bonafide belief that since works contract provided by them with material therefore the same is not liable for service tax. Appellant has shown reasonable cause for non payment of service tax and considering facts that the appellant has discharged service tax, before issuance of show cause notice, they are entitle for the waiver of penalty imposed under Section 76 invoking Section 80. - Decided in favor of assessee.

Summary

Issues:
Appeal against Order-in-Appeal upholding Order-in-Original with penalties - Waiver of penalty under Section 76.

Analysis:
1. The appellant was engaged in providing construction services but did not obtain service tax registration or discharge the service tax liability initially. After investigation, a show cause notice was issued proposing recovery of service tax, interest, and penalties under Section 76, 77, and 78 of the Finance Act, 1994. The appellant contested the penalties imposed by the original authority, claiming they had paid the service tax and interest before the notice was issued. The appeal before the Commissioner(Appeals) was rejected, leading to the current appeal for waiver of penalty under Section 76.

2. The appellant's representative argued that the non-payment of service tax was due to a genuine belief that their works contract with material did not attract service tax, as they were already paying VAT. They contended that they had paid the service tax promptly after being informed by the investigating authority, before the show cause notice was issued. The appellant also claimed that they had reasonable cause for the non-payment and cited previous judgments to support their case, emphasizing that penalties under Section 76 should be waived.

3. On the other hand, the Revenue's representative argued that there was clear suppression of facts by the appellant, as it was revealed that the appellant was part of a group of companies aware of service tax provisions. The Revenue contended that penalties under both Section 76 and 78 should be imposed simultaneously, citing relevant judgments to support their stance. They highlighted that the appellant did not seek waiver of penalty under Section 80 in their appeal, which, according to them, precluded the possibility of waiving penalties.

4. After considering both sides' submissions and reviewing the records, the Tribunal found that the appellant had promptly paid the service tax and interest upon being informed by the department, before the issuance of the show cause notice. The Tribunal acknowledged the appellant's genuine belief regarding the non-levy of service tax and found that they had shown reasonable cause for the non-payment. The Tribunal also noted that the appellant had sought waiver of penalty under Section 80 in their appeal. Consequently, the Tribunal set aside the impugned order, allowing the appeal and granting the waiver of penalty under Section 76.

5. In conclusion, the Tribunal ruled in favor of the appellant, considering their prompt payment of service tax, genuine belief, and reasonable cause for non-payment. The Tribunal's decision to waive the penalty under Section 76 was based on the appellant's actions and arguments presented during the appeal process.