2017 (9) TMI 164 - AT - Service Tax

Penalty u/s 78 - GTA services - reverse charge mechanism - payment of tax with interest on being pointed out - Held that - Since appellant were aware about the taxability of GTA despite that they have consciously avoided to make payment of service tax on transport commission. No plausible reason given for non-payment of service tax. Merely because the appellants have paid the service tax and interest the penalty under Section 78 cannot be waived - also, the appellants have not disclosed the fact voluntarily without any enquiry by the department - penalty upheld - appeal dismissed - decided against appellant.

Summary

Issues:
- Liability of service tax on Goods Transport Agency Service (GTA) on reverse charge basis.
- Non-payment of service tax on the commission of transporter service under GTA.
- Challenge to penalties under Sections 76, 77(3), 78, and 70 of the Finance Act.
- Discrepancy regarding non-payment of service tax on transport commission.
- Allegations of suppression of fact and intentional avoidance of service tax on commission.
- Invocation of provisions of Section 80 for penalty waiver.
- Appellant's argument of no malafide intention and no suppression of fact.
- Revenue's contention of clear suppression of fact and necessity of penalty under Section 78.

Analysis:
The case involved the appellants paying service tax on Goods Transport Agency Service (GTA) on a reverse charge basis. However, during an audit from 2007-2008 to 2011-2012, it was discovered that the appellants had not paid service tax on the commission of transporter service under GTA. This led to the issuance of a show-cause notice, culminating in an adjudication order where penalties under Sections 76, 77(3) were set aside, but the total demand of service tax and penalties under Sections 78, 70 were upheld. The appellant contested the penalties under Section 78, arguing no malafide intention and no suppression of fact, as the transport commission amount was in the balance sheet, and all information was provided to the department when requested.

The Revenue, however, maintained that there was intentional avoidance of paying service tax on commission, constituting a clear suppression of fact, as the transaction was not declared in the ST-3 return or to the department. The Revenue argued that the penalty under Section 78 was necessary and could not be waived invoking Section 80. The Tribunal observed that while the appellants paid service tax on GTA, they consciously avoided paying tax on transport commission, with no plausible reason provided for non-payment. The Tribunal cited the Supreme Court's ruling in a similar case to support upholding the penalties under Section 78, emphasizing that non-disclosure of transport commission data constituted suppression of fact.

Ultimately, the Tribunal found that the suppression of fact was established, as the appellants did not disclose the transaction voluntarily, and submission of documents post-investigation did not absolve them of suppression. As a result, the penalties under Section 78 and Section 70 were upheld, along with the demand for service tax and interest. The appeal was disposed of accordingly, maintaining the penalties and liabilities as per the adjudication order.