2017 (12) TMI 1213 - AT - Service Tax

Extended period of limitation - penalty u/s 77 and 78 - Construction of Residential Complex - Held that - there was no occasion for the Department to know the fact of non-payment of Service Tax by the appellant. For this reason Department could not issued show-cause notice within the normal time period of one year. The failure on the part of the appellants in as much as they have not obtained the Service Tax Registration and also not filed periodical ST-3 return, they have suppressed the fact of non-payment of Service Tax from department therefore the extended period was rightly invoked - the demand of Service Tax and interest thereof is upheld. Penalty u/s 77 and 78 - Held that - Since the issue of penalty u/s 78 is mixed question of law and fact, we are of the view that the matter needs to be reconsidered by the Adjudicating Authority - For the purpose of re-deciding the issue of penalties imposed under Section 77 & 78, the matter is remanded to the Adjudicating Authority. Partly decided against appellant and part matter on remand.

Summary

Issues involved:
Levy of Service Tax on the services of "Construction of Residential Complex."
Time bar for demand due to suppression of facts and intent to evade payment of Service Tax.
Imposition of penalties under Section 77 & 78 of the Finance Act, 1994.
Consideration of various judgments on penalty imposition under Section 78.

Analysis:
The issue in this case revolves around the levy of Service Tax on the construction of residential complexes. The appellant argued that the demand was time-barred due to a lack of suppression of facts with the intent to evade payment of Service Tax. They contended that they had a bona fide belief that Service Tax was not payable on such services due to an ongoing legal challenge. The appellant also challenged the imposition of penalties under Section 77 & 78 of the Finance Act, 1994. They cited several judgments to support their position, emphasizing that they had paid the entire Service Tax along with interest before receiving the show-cause notice.

The Revenue, on the other hand, maintained that the appellants knowingly avoided paying Service Tax despite being aware of the legal obligation. They argued that the appellants consciously suppressed facts from the department, justifying the demand for the extended period and penalties under Section 78.

Upon careful consideration, the Tribunal found that there was no dispute regarding the statutory liability of Service Tax on the construction of residential complexes. The appellant's argument of bonafide belief was dismissed as they failed to obtain registration or declare taxable value, indicating a lack of genuine intent. The Tribunal upheld the demand for Service Tax and interest, citing the appellant's failure to comply with procedural requirements.

Regarding the imposition of penalties under Section 77 & 78, the Tribunal noted that the Adjudicating Authority had relied on various judgments, including the Supreme Court case of Dharamendra Textile Vs. Union of India. However, the Tribunal observed that the appellant's arguments on penalty under Section 78 had not been adequately considered. As penalty under Section 78 allows for immunity under Section 80, the Tribunal remanded the matter to the Adjudicating Authority for reconsideration. The demand for Service Tax and interest was upheld, pending a reevaluation of the penalties imposed under Section 77 & 78.