2018 (2) TMI 1617 - AT - Service Tax

Penalty - service tax is paid along with interest before issuance of SCN - applicability of Section 73(3) of the FA - Held that - the appellant had paid the service tax along with interest before issue of show cause notice and accordingly as per Section 73(3) of the Finance Act, 1994, show cause notice should not have been issued as the Revenue has failed to bring on record any material to show that there was intention to evade payment of service tax. Further, the appellant paid the service tax in spite of the fact that they have not collected the same from their customers - Moreover, the issue relating to construction of complex services has been subject of litigation before various courts and the appellant was justified in not paying the service tax till it was pointed out by the Revenue. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Appellants challenging impugned order
- Liability to pay service tax for construction services
- Failure to obtain service tax registration
- Show cause notices issued for non-payment
- Penalty imposed under various sections
- Appeal before Commissioner (Appeals)
- Arguments on willful intention to evade tax
- Judicial precedents cited
- Applicability of Section 73(3) of the Finance Act
- Interpretation of leviability of service tax
- Justification for non-payment until pointed out by Revenue

Analysis:
The appellants filed three appeals against a common impugned order passed by the Commissioner (Appeals) dismissing their appeals and upholding the order-in-original. The investigation revealed their liability to pay service tax for providing taxable services related to the construction of residential complexes. Show cause notices were issued for non-payment, invoking penal provisions under Sections 76, 77, and 78 of the Finance Act. The order-in-original confirmed the demand for service tax, interest, and penalties. The appellants argued that they paid the service tax and interest despite not collecting it from customers. They contended that the Revenue should not have issued show cause notices as per Section 73(3) of the Finance Act. They also cited judicial precedents questioning the leviability of service tax for construction services.

During the hearing, the consultant for the appellants argued that the impugned order lacked legal sustainability and failed to consider binding judicial precedents and legal provisions. They claimed no willful intention to evade tax, emphasizing their prompt payment upon notification by the department. Citing court decisions, they challenged the leviability of service tax on specific components of construction services. The Revenue reiterated the findings of the impugned order.

Upon review, the Tribunal found that the appellants had paid the service tax and interest before the issuance of show cause notices, as mandated by Section 73(3) of the Finance Act. The Tribunal noted the absence of evidence of intention to evade tax and the appellants' payment despite non-collection from customers. Considering the ongoing litigation on construction services taxation and the justifiability of non-payment until clarified by the Revenue, the Tribunal concluded that the impugned order was legally unsustainable. Consequently, the Tribunal allowed all the appeals, setting aside the impugned order.

In the final judgment pronounced on 31.1.2018, the Tribunal ruled in favor of the appellants, highlighting the legal obligations, precedents, and interpretations influencing the decision to overturn the impugned order based on the issues raised during the proceedings.