2017 (8) TMI 1283 - AT - Service Tax

Maintenance or Repair Services - the immovable property belonging to the appellants are leased/rented to various IT companies - The department was of the view that prior to 01.06.2007, the appellants are liable to pay service tax under the category of Maintenance or Repair Services - Held that - Taking into consideration the concession made by the appellants that they are liable to pay service tax for the said services for the disputed period, we consider that the matter can be remanded to the adjudicating authority for the limited purpose of recalculation of net tax liability after giving the benefit of Cenvat credit that the appellant would have been eligible to avail during the impugned period. Penalty u/s 78 - Held that - the appellants are a State Government Undertaking primarily set up for promoting the housing and promoting IT and IT enabled services. This being so, nefarious intent of evading service tax cannot be expected of them - appellants were under a reasonable cause for non-discharging the tax liability and accordingly, we find it proper to set aside the penalty - penalty set aside. Appeal allowed by way of remand.

Summary

Issues: Liability to pay service tax under Maintenance or Repair Services category, imposition of penalties, eligibility of Cenvat credit, remand to adjudicating authority for recalculation of net tax liability, waiver of penalty due to genuine belief, adjustment of pre-deposit amount.

Analysis:

1. Liability to pay service tax under Maintenance or Repair Services category:
The case involved the issue of whether the appellants were liable to pay service tax under the category of Maintenance or Repair Services for the period before 01.06.2007. The department issued a show-cause notice proposing to recover service tax, interest, and penalties. The adjudicating Commissioner confirmed the demand of service tax along with interest and imposed penalties under section 76 of the Finance Act, 1994. The appellants contested this liability, leading to the appeal before the Tribunal.

2. Imposition of penalties:
The appellants argued that they were under a genuine belief that they were not liable to pay tax under the Maintenance or Repair Services category during the disputed period. The Tribunal considered the nature of the appellants as a State Government Undertaking primarily promoting housing and IT services, concluding that there was no nefarious intent to evade tax. Therefore, the Tribunal set aside the penalty imposed under section 76 of the Finance Act, 1994.

3. Eligibility of Cenvat credit and remand to adjudicating authority:
The appellants requested the benefit of Cenvat credit available to them for the disputed period. The Tribunal directed the matter to be remanded to the adjudicating authority for the recalculation of the net tax liability after considering the Cenvat credit that the appellants would have been eligible to avail during the relevant period.

4. Waiver of penalty due to genuine belief:
Considering the genuine belief of the appellants regarding their tax liability under the Maintenance or Repair Services category, the Tribunal found that they had a reasonable cause for non-discharging the tax liability. As a result, the Tribunal set aside the penalty imposed on the appellants.

5. Adjustment of pre-deposit amount:
During the appeal proceedings, the appellants had made a pre-deposit amount, which the Tribunal accepted to be adjusted against any net tax liability that may be determined in the remand proceedings. The Tribunal clarified that the de novo adjudication proceedings were limited to the re-calculation of the net tax liability after considering the Cenvat credit eligibility, and the penalty imposed under section 76 was set aside.

In conclusion, the Tribunal allowed the appeal in favor of the appellants, setting aside the penalty and directing the recalculation of the net tax liability while considering the Cenvat credit eligibility.