2018 (6) TMI 1257 - AT - Service Tax

Penalty u/s 78 - absence of mens rea or not? - appellant has neither paid service tax nor filed statutory ST-3 returns - Held that - Merely the payment of service tax by the appellant before the filing of appeal before the Commissioner (Appeals) did not establish the absence of mensrea on the part of the appellant. Had the appellant acted under bonafide belief, then they ought to have cooperated in the investigation. But it has come on record that they did not corporate with the department nor produced the record for quantification of service tax liability - appellant also failed to produce any document to prove their bonafide believe or to show that they did not collect the amount of service tax from their clients - penalty upheld - appeal dismissed - decided against appellant.

Summary

Issues:
Imposition of penalty under Section 78 of the Finance Act, 1994 based on absence of mensrea.

Analysis:
The appeal was filed against the Order-in-Appeal passed by the Commissioner (Appeals) GST, Customs and Central Excise, Bhopal (MP). The appellant, a contractor, contested the imposition of penalty under Section 78 of the Finance Act, 1994, claiming absence of mensrea. The Department's argument was that the appellant neither paid service tax nor filed statutory ST-3 returns, asserting that the services provided were exempt from service tax. The investigation revealed non-cooperation from the appellant in quantifying service tax liability, leading to determination based on a sample work order, balance sheet figures, and form 26AS. A Show Cause Notice was issued, resulting in confirmation of service tax demand, interest, and penalties.

The appellant deposited a portion of the service tax after the Order-in-Original, following which the Commissioner (Appeals) upheld the demand against one entity, dropping it for two others. The issue then focused on the payment of penalties. The appellant argued lack of mensrea and wilful suppression, contending they believed they were not liable for service tax. However, the Department maintained that the appellant's payment post-investigation and non-cooperation indicated suppression of facts, justifying the extended recovery period and penalty under Section 78. The appellant's failure to cooperate in quantifying service tax liability further weakened their claim of bonafide belief.

The Tribunal dismissed the appeal, emphasizing that the appellant's post-Order-in-Original payment did not absolve them of mensrea, especially considering their lack of cooperation during investigation. The appellant's failure to provide evidence supporting their belief or showing non-collection of service tax from clients undermined their argument. The decision highlighted that the appellant's actions did not align with a genuine bonafide belief, leading to the rejection of the appeal.