2018 (5) TMI 1519 - AT - Service Tax

Penalty u/s 77 and 78 - amount received but not remitted any service tax - Held that - the appellant is a Government body and dredging service was made taxable w.e.f. 16/06/2005 and they had a bona fide belief that being Government department, they are not liable to pay service tax. Subsequently, when they came to know that they are liable to pay service tax and got the show-cause notice, they paid the service tax and subsequently the interest also at the direction of the Tribunal - the Revenue has not brought any material on record to show that appellants have suppressed the material facts from the Department in order to evade the tax. It is a case of omission on the part of the appellant as they were under bona fide belief that they are not liable to pay service tax being a statutory Government body - penalty set aside by invoking section 80. Appeal allowed.

Summary

Issues:
Appeal against order setting aside penalty under Section 76 but upholding penalties under Sections 77 and 78. Appellant, a Government undertaking, did not remit service tax on received amounts, believing they were not liable. Department issued show-cause notice leading to penalties. Appellant appealed against upheld penalties under Sections 77 and 78.

Analysis:
The appeal challenged the order setting aside the penalty under Section 76 but upholding penalties under Sections 77 and 78. The appellant, a Government undertaking engaged in dredging services, received payments but did not remit service tax due to a genuine belief that as a Government entity, they were exempt. The Joint Commissioner confirmed the demand and penalties under Sections 76, 77, and 78. The Commissioner(Appeals) dropped the penalty under Section 76 but upheld the penalties under Sections 77 and 78, leading to the current appeal.

The appellant argued that they were unaware of the levy and believed Government entities were exempt from paying tax to each other. They contended that no suppression of facts occurred, as all payment details were provided, and being a Government body, there was no motive for evasion. They cited judicial precedents to support their case. The Revenue argued against immunity for State Government undertakings and claimed suppression of material facts, justifying the extended period for invoking penalties.

The Tribunal considered both sides' submissions and the evidence. It acknowledged the appellant's genuine belief as a Government entity exempt from service tax. Upon receiving the show-cause notice, the appellant paid the service tax and interest as directed by the Tribunal. Finding no evidence of suppression or intent to evade tax, the Tribunal ruled in favor of the appellant. Citing the Surat Municipal Corporation case, it held that as a statutory Government body, there was no mala fide intent to evade tax. Consequently, invoking Section 80 of the Finance Act, 1994, the Tribunal dropped the penalty on the appellant, allowing the appeal.

In conclusion, the Tribunal granted the appellant the benefit of Section 80, considering their status as a Government body and their genuine belief regarding tax liability. The decision highlighted the absence of mala fide intent or suppression of facts, leading to the dropping of the penalty under Section 78. The judgment emphasized the importance of statutory interpretation and the appellant's compliance upon becoming aware of their tax obligations, ultimately allowing the appeal.