2017 (2) TMI 843 - AT - Service Tax

Business Auxiliary Services - suppression of the value of services - invocation of Section 73(3) of FA - Held that - It is settled law that if new category of services is introduced the same is taxable from that date and are not covered any of existing services. Hence it cannot be said that appellant had acted in a mala fide manner is not discharging the Service Tax on the amount received for recovery of dues - appeal rejected - decided against Revenue.

Summary

Issues:
1. Interpretation of Section 73(3) of the Finance Act regarding imposition of penalties.
2. Classification of services for taxation under "Recovery Agent Services" vs. "Business Auxiliary Services."

Analysis:

Issue 1: Interpretation of Section 73(3) of the Finance Act regarding imposition of penalties:
The appeal before the Appellate Tribunal CESTAT MUMBAI was filed by the Revenue against an Order-in-Appeal. The dispute arose when the Revenue claimed that the respondent, a service provider under "Business Auxiliary Services," had received additional payments for services rendered, which were not taxed. The Revenue issued a show-cause notice for appropriation of the amount and imposition of penalties under Sections 77 and 78 of the Finance Act, 1994. However, the first appellate authority set aside the penalties, stating that the show-cause notice was issued in violation of statutory provisions. The Tribunal upheld this decision, emphasizing that the penalties were not applicable as the service provider had paid the Service Tax and interest before the show-cause notice was issued, and there was no discrepancy in the amounts deposited and demanded.

Issue 2: Classification of services for taxation under "Recovery Agent Services" vs. "Business Auxiliary Services":
The Tribunal further analyzed the nature of the services provided by the respondent. It was observed that the amount in question, received for the recovery of outstanding dues, could be categorized under "Recovery Agent Services," taxable from a specific date. As per established law, services falling under a new category are taxable from the introduction of that category and are not covered by existing services. Therefore, the Tribunal concluded that the respondent had not acted in bad faith by not paying Service Tax on the amount received for the recovery of dues. Additionally, the Tribunal referenced a legal precedent from the Honorable High Court of Karnataka, stating that Section 73(3) of the Finance Act and Section 80 could be invoked in such cases. Consequently, the Tribunal held that the impugned order was legally sound and rejected the Revenue's appeal.

In conclusion, the Appellate Tribunal CESTAT MUMBAI upheld the decision of the first appellate authority, ruling in favor of the respondent and rejecting the Revenue's appeal based on the interpretation of Section 73(3) of the Finance Act and the classification of services for taxation purposes.