2018 (7) TMI 699 - AT - Service Tax

Penalty u/s 78 of FA - GTA Services - no suppression of facts with intent to evade duty - Held that - It has to be noted that the original authority has not imposed any penalty u/s.78, though the demand was confirmed. There is no discussion by the original authority that there was any suppression of facts with intention to evade payment of tax on the part of the appellant. In the absence of such evidence, the penalty imposed u/s.78 cannot sustain - Further, during the relevant period, there was much confusion as to whether service tax under GTA would be applicable to the appellant and the issue being interpretational one, penalty cannot sustain. In K.Gopalakrishnan vs CCE, Chennai 2017 (1) TMI 1503 - MADRAS HIGH COURT , it was held by the Hon ble High Court that the suppression of facts with intention to evade payment of service tax has to be established for imposing penalty u/s.78 of the Act. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Imposition of penalty under Section 78 of the Finance Act, 1994 for non-payment of service tax on GTA services.

Analysis:
The case involved the appellants, who were dealers in MS Scrap and had not discharged service tax for GTA services, leading to a Show Cause Notice demanding payment along with interest and penalties. The original authority confirmed the demand and imposed a penalty under Section 76 of the Finance Act, 1994. However, the penalty under Section 78 was not imposed initially, which led the department to appeal before the Commissioner (Appeals) seeking the imposition of the penalty under Section 78. The Commissioner (Appeals) set aside the penalty under Section 76 and imposed an equal penalty under Section 78, prompting the appellant to appeal to the Tribunal.

The appellant argued that during the relevant period, there was confusion regarding the liability to pay service tax on GTA services. They believed they did not fall under the taxable category and thus did not discharge the service tax, emphasizing the absence of deliberate intention to evade tax. The appellant contended that there was no evidence of deliberate tax evasion or suppression of facts, which is crucial for imposing a penalty under Section 78.

Upon reviewing the impugned order, the Tribunal noted that the Commissioner (Appeals) did not establish any act evidencing suppression of facts by the appellant. The original authority also did not provide any evidence of intentional evasion of tax. Given the interpretational confusion surrounding the applicability of service tax on GTA services during the relevant period, the Tribunal opined that the penalty under Section 78 should be waived under Section 80 of the Finance Act, 1994.

Referring to the case of K.Gopalakrishnan vs CCE, Chennai, where it was held that the suppression of facts with the intention to evade service tax payment must be established for imposing a penalty under Section 78, the Tribunal set aside the penalty under Section 78. The impugned order was modified to remove the penalty under Section 78 while confirming the service tax demand and interest. The appeal was allowed with any consequential relief deemed necessary.