2016 (8) TMI 893 - AT - Service Tax

Imposition of penalty under section 78 of the Finance Act, 1994 respondent entered in a contract for Site Formation, Clearance and Excavation Services work further sub-contracted by respondent confusion regarding the liability of service tax - service tax paid by respondent when demanded and thereafter penalty imposed section 80 of the finance act, 1994 Held that - the category having been introduced recently on the services in question, there was a lot of confusion and chaos in the field, giving a bonafide belief to the assesee that there would not be any tax liability on him. The actual services was duly provided by sub-contractor and he was discharging the full service tax liability. In such a scenario, the assesse s stand that they were under a bonafide belief that no tax liability would fall upon them as the same stands discharged by the sub-contractor is required to be appreciated in which case, the provisions of section 80 of the Finance Act, 1994 would get invoked no penalty imposed appeal disposed off decided against Revenue.

Summary

Issues involved: Appeal against penalty imposed under Section 78 of the Act for service tax liability not discharged by the respondent.

Analysis:
1. Issue of Penalty Imposition: The Revenue appealed against the Commissioner (Appeals) decision to set aside the penalty imposed on the respondent under Section 78 of the Act. The original dispute arose from the respondent entering into a contract with M/s. NTPC for services but subcontracting the work to M/s. M.K. Gupta and Company. The Revenue contended that the respondent should have discharged the service tax liability, leading to inquiries and eventual voluntary payment by the respondent.

2. Observations on Penalty Imposition: The Commissioner (Appeals) set aside the penalty under Section 78, emphasizing that a speaking order justifying the penalty imposition is essential. The Commissioner noted the confusion surrounding the new levy of service tax on the services in question, highlighting the lack of awareness among trade parties. The absence of suppression of facts or intention to evade tax by the respondent was crucial in the decision.

3. Consideration of Bonafide Belief: The appellate tribunal agreed with the Commissioner's reasoning, acknowledging the respondent's bonafide belief that no tax liability would fall upon them due to the subcontractor discharging the service tax. The confusion in the field regarding the new levy further supported the respondent's position. The tribunal emphasized that penalizing the respondent under Section 78 was unwarranted given the circumstances.

4. Application of Section 80 of the Finance Act: The Revenue argued that the respondent should not benefit from Section 80 of the Finance Act due to their awareness of tax liability. However, the tribunal sided with the respondent's stance that they were not the actual service providers, and the subcontractor had fulfilled the tax obligations. This distinction, coupled with the confusion in the industry, led to the invocation of Section 80 in favor of the respondent.

5. Final Decision: Ultimately, the tribunal found no fault in the Commissioner (Appeals) order and rejected the Revenue's appeal. The tribunal's decision was based on the lack of suppression of facts by the respondent, the confusion surrounding the new tax levy, and the subcontractor's fulfillment of tax liabilities, which justified the respondent's bonafide belief in non-tax liability.

This detailed analysis of the judgment showcases the considerations of penalty imposition, bonafide belief, confusion in the industry, and the application of relevant sections of the Finance Act in determining the outcome of the appeal.