2017 (6) TMI 633 - AT - Central Excise

Waiver of penalties - appellant plea to waive penalties as they had remitted portion of the tax due before issue of demand notice and balance before the adjudication of the case - appellant admitted that they have collected the service tax from the students and the receipts also specifically mention that this service tax is included in the fee - the service tax was not deposited by the appellant on account of financial constraints - Held that - in the case of Top Security Ltd 2015 (12) TMI 1164 - CESTAT NEW DELHI , the division bench of the Tribunal has rejected the defense of financial constrains for depositing the duty after being collected from the customers - penalties upheld - appeal dismissed - decided against appellant.

Summary

Issues: Appeal against imposition of penalty under Section 78 of the Finance Act and Section 77 - Failure to remit service tax collected from customers - Financial constraints as a defense.

Analysis:
1. Imposition of Penalty under Section 78 and Section 77:
The appellant, engaged in commercial training services, collected service tax from customers but failed to remit it to the government account. The Joint Commissioner confirmed the demand and imposed penalties under Section 78 and Section 77. The appellant appealed to the Commissioner (Appeals) against the penalties. The Commissioner (Appeals) rejected the appeal, leading to the present appeal before the Tribunal.

2. Arguments and Submissions:
The appellant's counsel argued that the impugned order failed to consider the evidence and judicial precedents. They contended that the levy of service tax for coaching classes was new, and the appellant was unaware of the statutory provisions initially. The appellant claimed financial difficulties and lack of willful intention for the non-payment of service tax. On the other hand, the respondent argued that the appellant had collected service tax as evident from receipts issued to customers and admitted to not depositing it due to financial constraints.

3. Judicial Precedents and Decisions:
Both parties relied on various judicial decisions to support their arguments. The appellant cited cases where penalties were waived or reduced due to mitigating circumstances, while the respondent cited cases where financial constraints were not accepted as a defense for non-payment of collected taxes.

4. Tribunal's Decision:
After evaluating the submissions and evidence, the Tribunal found that the appellant had collected service tax from customers but failed to deposit it due to financial constraints. The Tribunal noted that the appellant's reliance on judicial precedents was not applicable to the current case, as those cases did not involve collecting and retaining service tax without remittance. The Tribunal upheld the imposition of penalties under Section 78, emphasizing that financial difficulties cannot justify withholding collected service tax. Citing a specific case where a similar defense was rejected, the Tribunal dismissed the appeal, affirming the penalty imposed by the Commissioner (Appeals).

In conclusion, the Tribunal's decision focused on the appellant's failure to remit collected service tax despite admitting to collecting it from customers. The defense of financial constraints was not considered sufficient to waive the penalties imposed under Section 78 and Section 77, leading to the dismissal of the appellant's appeal.