2017 (10) TMI 287 - AT - Service Tax

Penalty u/s 76 - non-payment of service tax - section 73 (3) of the Act - Held that - The appellant in the present case was duly aware of its legal obligations as they were registered with the serviced tax department and were following due procedure prior to the period in question. The appellant s stand that service tax was not being paid on account of financial crunch can not be appreciated inasmuch as they were collecting service tax from their customers and instead of depositing the same it was being pocketed. Even if it is assumed that tax was not being deposited on account of financial difficulties, nothing stopped the appellant to file the statutory returns disclosing their liability to pay service tax, in which case, it would have been a it cannot be a case of delayed payment and not of non-payment. The fact of non-disclosure and non-filing of returns leads to the inevitable conclusion that the appellant was doing so with malafide intention, in which case, there is clear mandate of law contained in the provisions of section 76, for imposition of penalties - penalty upheld - appeal dismissed - decided against appellant.

Summary

Issues:
Non-filing of service tax returns for specific periods, non-payment of service tax, imposition of penalty under section 76 of the Finance Act, 1994, challenge to penalty imposition, financial difficulties as a reason for non-payment, malafide intention, applicability of section 73(3) in the case.

Analysis:
The appellant, engaged in "Business Support Service," failed to file returns and pay service tax for two periods, amounting to approximately ?31.89 lakhs and ?15.34 lakhs. The Revenue notified the appellant to pay the outstanding service tax, which was done along with interest. Subsequently, a show-cause notice proposing a penalty under section 76 of the Finance Act, 1994 was issued and a penalty of ?5,80,169 was imposed after adjudication, upheld by the Commissioner (Appeals), leading to the current appeal.

The primary contention in the appeal was against the imposition of the penalty. The appellant acknowledged the non-filing of returns and non-payment of service tax, attributing it to financial constraints. However, the appellant argued that since the tax was paid with interest after being directed by the authorities, the penalty should be set aside. The departmental representative argued that penalty imposition is mandatory under section 76 in cases of non-payment or non-filing, especially when there is malafide intent, as in this case where the appellant collected but did not remit service tax.

The tribunal noted that the appellant had a legal obligation to file returns and pay service tax, being registered with the tax department. The argument of financial difficulties was dismissed as the appellant collected service tax from customers but did not remit it, indicating malafide intent. The failure to disclose and file returns was deemed intentional, justifying the penalty under section 76. The tribunal upheld the penalty, rejecting the appeal.

In conclusion, the tribunal upheld the penalty imposed on the appellant for non-filing and non-payment of service tax, citing malafide intent and the clear mandate of law under section 76. The appellant's argument of financial constraints was not accepted, emphasizing the legal obligation to disclose and pay service tax, regardless of financial difficulties. The penalty imposition was deemed justified in light of the intentional non-compliance with tax obligations.