2017 (12) TMI 284 - AT - Service Tax

Penalty u/s 78 - Delayed payment of service tax - payment of tax with interest on being pointed out but before issuance of SCN - invocation of Section 73(3) whether justified or not? - Held that - SCN can be waived u/s 73(3) only when there is no suppression of fact or malafide intention with intend to evade payment of duty and the amount of service tax liability alongwith interest is paid by the assessee before issuance of the SCN. In Section 73(4) of the Act, it is provided that if the non-payment of service tax is on account of suppression, mis-declaration, fraud, collusion etc. the provision of Section 73(3) is not applicable - The appellant by not declaring the correct value despite collecting the service tax and non-payment thereof fall under the provisions of Section 73(4) of the Act, therefore not entitled for the immunity as provided u/s 73(3) of the Act. Penalty upheld - appeal dismissed - decided against appellant.

Issues:
- Appeal against order-in-original confirming demand, interest, and penalty under Section 78 of the Act.
- Waiver sought for penalty under Section 78 based on delayed payment of service tax.
- Dispute over intention of evasion of service tax versus delayed payment.
- Appellant's argument invoking Section 80 of the Act for penalty waiver.
- Revenue's contention on malafide intention due to non-deposit of collected service tax.
- Interpretation of Section 73(3) for waiver of penalty and payment of service tax liability.
- Comparison of facts with judgments cited by both parties.

Analysis:
1. The appeal challenged an order confirming a substantial demand, interest, and penalty under Section 78 of the Act. The appellant specifically sought a waiver for the penalty amount imposed under Section 78, arguing against the intention of evasion but admitting to delayed payment of service tax.

2. The appellant provided services without discharging service tax obligations during a specific period, but later paid the entire tax amount before a show cause notice was issued. The appellant contended that the penalty under Section 78 should be waived as there was no intent to evade service tax, citing difficulties faced during the relevant period.

3. The appellant's counsel argued that penalties under Section 78 should not apply in cases of delayed payment without intent to evade tax, invoking Section 80 of the Act for waiver. Several judgments were cited to support the contention that penalties should not be imposed in such circumstances.

4. The Revenue, however, maintained that the appellant collected service tax from clients but did not deposit it with the government, indicating malafide intent. The Revenue emphasized that non-disclosure of non-payment in service tax returns further demonstrated the appellant's intentions.

5. The Tribunal analyzed Section 73(3) of the Act, which allows for waiver of penalties if service tax liability is paid before a show cause notice is issued, provided there is no suppression of facts or intent to evade payment. In this case, since the demand was raised for an extended period and the appellant did not declare the correct value despite collecting service tax, the Tribunal concluded that the appellant did not qualify for immunity under Section 73(3).

6. The Tribunal upheld the penalty under Section 78, stating that the appellant's actions fell under Section 73(4) due to non-disclosure and non-payment, making them ineligible for the waiver. The Tribunal dismissed the appeal based on the specific facts of the case and the legal provisions analyzed.

This detailed analysis of the judgment highlights the key arguments, legal interpretations, and conclusions reached by the Tribunal regarding the waiver of penalties under Section 78 of the Act in the context of delayed payment of service tax and intent to evade tax.

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