2017 (9) TMI 93 - AT - Service Tax

Penalty u/s 78 - non-payment of service tax - Held that - no case of deliberate defiance of the provisions of law is made out. At best it only a case of delayed deposit of tax - the appellant had disclosed the error in their revised return in July, 2009 before the audit pointed out in August, 2009. Accordingly, the ingredients of levy of penalty under Section 78 are not made out - appeal dismissed - decided against Revenue.

Summary

Issues:
- Whether the Commissioner (Appeals) was correct in setting aside the penalty under Section 78 of the Finance Act.

Analysis:

1. Background and Facts:
- The respondent was registered with the Services Tax Department and engaged in providing various taxable services, including export services and availing Cenvat Credit.
- The respondent failed to discharge Service Tax liability under Reverse Charge Basis for services received from outside India.
- After an audit, it was discovered that the respondent had not paid Service Tax of a certain amount.
- The respondent filed a refund claim and deposited a partial amount towards the outstanding tax liability.

2. Order-in-Original and Appeal:
- The Order-in-Original confirmed the tax liability, demanded interest, and imposed a penalty under Section 78 for late payment of Service Tax.
- The respondent appealed, stating that the error was brought to the notice of the Department, and the tax remained unpaid due to financial difficulties.
- The Commissioner (Appeals) accepted the contentions of the respondent and set aside the penalty under Section 78, noting no intent to evade tax and adequate disclosures made.

3. Revenue's Appeal:
- The Revenue appealed, claiming willful mis-declaration in the original return, non-discharge of Service Tax liability before the show cause notice, and absence of reasonable cause for delayed payment.
- The Revenue argued that the respondent deliberately misrepresented the outstanding Service Tax as paid in the original return.

4. Arguments and Decision:
- The Revenue argued for the imposition of penalty, while the respondent contended that the delay was due to financial difficulties and no deliberate attempt to evade tax.
- The Tribunal found no deliberate defiance of the law, only a delayed tax deposit, and noted the respondent's entitlement to Cenvat Credit for Service Tax paid on Reverse Charge Basis.
- The Tribunal upheld the Commissioner (Appeals) decision to delete the penalty under Section 78, citing no contumacious conduct or suppression of facts to evade tax.

5. Conclusion:
- The appeal by Revenue was dismissed, affirming the deletion of the penalty under Section 78 by the Commissioner (Appeals).
- The respondent-assessee was entitled to consequential benefits in accordance with the law.

This detailed analysis of the legal judgment highlights the key issues, facts, arguments presented, and the final decision reached by the Tribunal regarding the penalty under Section 78 of the Finance Act.