2017 (11) TMI 657 - AT - Service Tax

Valuation - Security Agency Service - Revenue held a view that the appellant did not consider the gross amount received for rendering the taxable service to discharge service tax. They have paid service tax only on their commission - Held that - pleading bonafide understanding of law to the effect that service tax liability only on the commission accruing to them the appellant did not pay service tax on the salary component paid to the Security Guard which in turn was received from the clients. We find that the appellant have made out a case for such bonafide belief though now they are not contesting on the merit of their tax liability as upheld by the lower authorities - Considering the nature of scope of the appellant activity run by ex-Service men we find that provision of Section 80 can be invoked to set aside the penalty imposed under Section 78 on the appellant. While upholding the tax liability which in any case is not contested we set aside the penalty imposed - appeal allowed in part.

Summary

Issues: Valuation of taxable service; Applicability of penalty under Section 78; Invocation of Section 80 for penalty waiver.

Valuation of taxable service:
The appellant, engaged in providing manpower supply under the category of 'Security Agency Service,' disputed the value of taxable service provided. The Revenue alleged that the appellant did not consider the gross amount received for rendering the service to discharge service tax, paying tax only on their commission. The proceedings resulted in confirmation of differential service tax and penalty under Section 78. The appellant contended that they paid service tax regularly on the consideration received, excluding the salary amount paid to Security Guards. They believed the tax liability was only on the consideration retained by them, not on the reimbursed salary. The Tribunal acknowledged the appellant's bonafide belief but upheld their tax liability on the gross value, setting aside the penalty under Section 80 due to the appellant's ex-Service men organization and invoking the provision for penalty waiver.

Applicability of penalty under Section 78:
The appellant appealed for waiver of the penalty imposed under Section 78, arguing that they had paid the service tax in full and were only seeking relief from the penalty. The appellant maintained that they had a genuine belief that the tax liability was only on the commission received, not on the salary paid to Security Guards. The Tribunal considered the arguments presented by both sides and found that the appellant had a bonafide understanding of the law, leading to the invocation of Section 80 to set aside the penalty while upholding the tax liability on the gross value.

Invocation of Section 80 for penalty waiver:
The appellant's counsel pleaded for the waiver of the penalty imposed, citing Section 80. The appellant, an organization of ex-Army men managing the business activity to assist ex-servicemen, relied on a Tribunal decision concerning similar circumstances. The Revenue opposed the plea, emphasizing the settled tax liability on the gross value for security agency services. The Tribunal, after hearing both parties and reviewing the appeal records, upheld the tax liability on the gross value but set aside the penalty imposed under Section 78, invoking Section 80 due to the appellant's bonafide belief and the nature of the appellant's activity run by ex-Service men. The appeal was partly allowed, with the penalty being waived under Section 80 while confirming the tax liability.