2018 (4) TMI 159 - AT - Service Tax

Penalty - non-payment of service tax - Held that - the appellant is a small contractor who was new to the service tax and was not aware of the Service Tax procedure - further, he has not charged nor collected the service tax from his customer and has paid the service tax more than what was due from him under the provisions of the Act. There was a reasonable cause for the failure to pay the service tax - penalty set aside by invoking section 80.

Summary

Issues:
Appeal against order passed by Commissioner(Appeals) - Service tax demand on various services - Penalty imposition under Sections 76, 77 & 78 - Applicability of Section 80 of the Finance Act.

Analysis:
The appellant, a service provider, appealed against the order passed by the Commissioner(Appeals) concerning service tax demands and penalties. The appellant had provided services to a company and was alleged to have not paid the applicable service tax. The Additional Commissioner confirmed a service tax demand along with interest and penalties. The Commissioner(Appeals) set aside the service tax on certain values but upheld the rest of the demand. The penalty under Section 76 was set aside, while penalties under Sections 77 and 78 were upheld.

The appellant contended that the impugned order was not sustainable as it did not consider the law properly. The appellant argued that the service tax payable was less than determined by the original authority and had already paid more than due. It was claimed that penalties under Sections 77 and 78 were not justified due to a reasonable cause for the failure to pay service tax. The appellant cited a High Court decision to support the argument that penalties are not automatic but subject to Section 80 of the Act.

On the other hand, the respondent reiterated the findings of the impugned order. After hearing both sides and examining the records, the Judicial Member found that the appellant, being a small contractor new to service tax procedures, had not charged or collected service tax from customers. It was noted that the appellant had paid more service tax than required and that dropping the penalty under Section 76 warranted dropping penalties under Sections 77 and 78 as well. Citing the Karnataka High Court decision, the Judicial Member held that penalties should be dropped due to a reasonable cause for the failure to pay service tax.

In conclusion, the Judicial Member allowed the appeal to the extent of dropping the penalties under Sections 77 and 78 by invoking Section 80 of the Act. The decision was based on the appellant's lack of awareness as a small contractor and the payment of excess service tax, aligning with the principles established in the referenced High Court case.