2018 (6) TMI 709 - AT - Service Tax

Penalty u/s 77 and 78 of FA - activities undertaken for construction of site - service tax with interest paid before issuance of SCN - appellant had failed to discharge the service tax only due to the bonafide belief that their services would not fall under Site Formation and clearance, Evocation and Earth Moving and Demolition Service - Held that - It is clear from the records that the assessee was under a bonafide belief that since the contract was for commercial construction and the site preparation was only a part of that activity, the activities would fall completely under Commercial and Industrial Construction Service and they are eligible for abatement - penalty u/s 78 set aside by invoking provisions of section 80. The demand, interest and the penalty imposed under Section 77 of the Act upheld. Appeal allowed in part.

Summary

Issues:
- Classification of services under "Commercial or Industrial Construction Service" and "Site Formation and Clearance excavation and earth moving and demolition services"
- Imposition of penalty under Section 78 of the Finance Act, 1994

Analysis:
1. Classification of services: The appellants were registered under the category of "Commercial or Industrial Construction Service" but the department contended that their activities also fell under "Site Formation and Clearance excavation and earth moving and demolition services." A show-cause notice (SCN) was issued, leading to a demand for differential duty, interest, and penalties. The original authority confirmed the demand and interest but imposed penalties under various sections. The Commissioner (Appeals) upheld the demand and interest but set aside the penalty under Section 76. The appellant challenged this before the Tribunal, arguing that they believed their services fell under the former category, not the latter.

2. Imposition of penalty: The appellant's counsel argued that the penalty was contested, stating that part of the amount was paid before the SCN was issued and the rest after the order-in-Original. The appellant claimed they failed to pay the service tax due to a genuine belief that their services did not fall under "Site Formation and clearance, Evocation and Earth Moving and Demolition Service" but under "Commercial and Industrial Construction Services." The Tribunal considered the appellant's past case where the penalty was set aside for a different period. After examining the facts, the Tribunal found that the appellant had a genuine belief that their services were correctly classified under "Commercial and Industrial Construction Service" and were eligible for abatement. Consequently, the penalty imposed under Section 78 was deemed unwarranted and set aside invoking the provisions of Section 80 of the Finance Act, 1994. The demand, interest, and penalty under Section 77 were upheld, but the penalty under Section 78 was removed.

In conclusion, the Tribunal allowed the appeal, setting aside the penalty under Section 78 while maintaining the demand, interest, and penalty under Section 77. The decision was made based on the appellant's genuine belief in the correct classification of their services and previous Tribunal rulings in their favor.