2018 (8) TMI 818 - AT - Service Tax

Business Auxiliary Service (BAS) - non-payment of Service Tax - bonafide belief or not? - suppression of facts - demand of service tax with Interest and penalty - Held that - In this case if no audit took place at the end of M/s Godavari Pipes Pvt. Limited, the evasion of service tax would not have been detected by the Revenue. The contention of the appellant that they wees under bonafide belief that their service recipient has to pay service tax is not acceptable as there is no written agreement between the appellant and the service recipient - also, as ignorance of law is not an excuse, therefore, the contention of the appellant is not acceptable. As appellant is not paying service tax and not filing Service Tax Returns, in that circumstances, the appellant failed to prove the bonafide belief that the service recipient are paying service tax. In fact, if service recipient is paying the service tax on behalf of the appellant, then also under Section 77 also the appellant is required to file their ST-3 returns which appellant failed to do. Penalty - Held that - The demand of service tax was of ₹ 8,49,855/-. Against the said demand, the appellant paid an amount of ₹ 19.35,580/- which shows that appellant was diligent to pay service tax. Therefore, the said act of the appellant warrants no penalty is imposable on the appellant - penalty u/s 78 set aside - As appellant has provided taxable service for which the appellant was required to file ST-3 returns in time, which appellant failed to do. In that circumstances, penalty under Section 77 of the Act is confirmed. Appeal disposed off.

Summary

Issues:
Appeal against demand of service tax, interest, and penalty under Section 78 of the Finance Act.

Analysis:
1. Demand of Service Tax: The appellant appealed against the order confirming the demand of service tax, interest, and penalty. The case arose from a search at M/s Godavari Pipes Pvt. Limited, revealing the appellant's provision of taxable service without paying service tax. The appellant contended that they believed the service recipient was responsible for service tax payment. However, the Tribunal found this belief unacceptable due to lack of written agreement or verification. The appellant's failure to file Service Tax Returns and ignorance of the law were also considered. Consequently, the Tribunal upheld the demand of service tax and interest for the period of non-payment.

2. Penalty Imposition: The appellant argued against the penalty under Section 78 of the Act. The Tribunal noted that the appellant paid a significant amount towards the demanded service tax, indicating diligence. As a result, the Tribunal found no grounds for imposing a penalty under Section 78. However, the appellant's failure to file ST-3 returns on time led to the confirmation of a penalty under Section 77 of the Act. The Tribunal emphasized the appellant's obligation to file returns promptly for taxable services provided.

3. Personal Hearing: The appellant raised concerns about not receiving a personal hearing for adjudication. Despite this, the Tribunal based its decision on the record and arguments presented. The Tribunal's thorough consideration of the case, including the appellant's contentions and the Department's submissions, led to the dismissal of the appellant's appeal against the penalty under Section 78 but confirmation of the penalty under Section 77. The Tribunal highlighted the appellant's duty to comply with tax filing requirements and pay service tax promptly as per the Finance Act, 1994.

4. Benefit of Doubt: The Tribunal acknowledged the appellant's diligence in paying a substantial amount towards the demanded service tax. This diligence influenced the Tribunal's decision to set aside the penalty under Section 78. However, the appellant's failure to file ST-3 returns in a timely manner resulted in the confirmation of the penalty under Section 77. The Tribunal's analysis focused on the appellant's actions regarding tax compliance and responsibility for service tax payment, ultimately disposing of the appeal based on the presented terms.

By thoroughly examining the issues of demand of service tax, penalty imposition, personal hearing concerns, and benefit of doubt, the Tribunal provided a detailed analysis and decision in this case, emphasizing the importance of tax compliance and timely filing of returns for taxable services provided by the appellant.