2018 (3) TMI 499 - AT - Service Tax

Penalty - Erection, Commissioning and Installation work - Held that - The assessee has not produced any evidence to establish that the assessee was a sub-contractor and that the main contractor has discharged the service tax liability. In the absence of such proof, the claim of the assessee cannot be considered. The category of impugned services in Erection, Commission and Installation Services and it shows the Maintenance and Repair Services were part of it, as a composite contract - penalty u/s 76 is unwarranted. Appeal dismissed.

Summary

Issues:
1. Service tax liability on Erection, Commissioning, and Installation work.
2. Imposition of penalties under sections 76 and 78 of the Finance Act, 1994.
3. Discharge of service tax liability as a subcontractor.
4. Non-appearance of the appellant during the proceedings.

Analysis:
1. The case involved the appellants engaged in "Erection, Commissioning and Installation work" without discharging the service tax liability on the services rendered. After investigation, a show-cause notice was issued proposing recovery of service tax, interest, and penalties. The original authority confirmed a demand of &8377; 71,08,868/- along with penalties under section 78 of the Finance Act, 1994. The appellants, aggrieved by the order, filed an appeal. The department also appealed against the dropping of penalties under section 76 of the Act. The appellants argued that they were not aware of the service tax liability as they mainly rendered services to government entities and reputed private companies, and had already paid a significant amount before the show-cause notice. They contended that certain services were rendered as a subcontractor, and the main contractor had discharged the service tax liability. The appellants relied on specific judgments to support their case.

2. The Authorized Representative for the Revenue argued that the appellants intentionally evaded payment of service tax, and penalties under sections 76 and 77 should have been imposed. However, the original authority set aside these penalties invoking section 80 of the Finance Act, 1994. The Revenue contended that penalties were necessary.

3. The Tribunal found that the appellants did not provide sufficient evidence to establish themselves as subcontractors and that the main contractor had discharged the service tax liability. The impugned services were considered part of a composite contract involving Erection, Commission, and Installation Services along with Maintenance and Repair Services. The department was dissatisfied with the non-imposition of penalties under sections 76 and 77. The Commissioner imposed an equal penalty under section 78, corresponding to the undischarged service tax amount. Consequently, the Tribunal deemed the penalty under section 76 unnecessary and dismissed the department's appeal.

4. Despite repeated notices, the appellant did not appear during the proceedings. The Tribunal, after considering all arguments and submissions, found no grounds to interfere with the impugned order. Therefore, both the appeals filed by the appellant and the department were dismissed.