2018 (9) TMI 829 - AT - Service Tax

Construction of residential complex service - non-payment of service tax - period from 1.10.2007 to 31.3.2008 - bonafide belief - demand alongwith penalty - Held that - It is brought out from evidence that there is no intention to evade payment of service and that it was only a delay in payment of service tax. Further, during the relevant period, the issue whether the construction of residential complex service was taxable was under much dispute and being an interpretational issue, the contention of the appellant that they had bonafide belief regarding the classification and payment of service tax is not without force. The appellant has brought out a reasonable cause for non-payment of service tax and it is a fit case for invocation of section 80 of the Finance Act, 1994 - penalty set aside - remaining demand upheld. Appeal allowed in part.

Summary

Issues:
1. Classification of service under 'works contract service' or 'construction of residential complex service'.
2. Penalty imposition under section 76 of the Finance Act, 1994.

Issue 1: Classification of service under 'works contract service' or 'construction of residential complex service':

The appellants were registered for Commercial or Industrial Construction Service but not for Residential Complex Service. A show cause notice was issued demanding payment under the residential complex service category for a specific period. The appellant contended that their activity falls under 'works contract service' due to the transfer of property in goods, making it a composite contract. They argued that the department recognized this through Notification No.1/2006-ST and a previous Tribunal order. The appellant maintained that the penalty challenge was based on a genuine belief due to legal uncertainties and pending litigations on the issue. Citing relevant case laws, the appellant sought penalty waiver, emphasizing full tax payment and disclosure. The Tribunal acknowledged the appellant's reasonable doubt, history of litigations, and previous Tribunal rulings. Consequently, the Tribunal held that the penalty under section 76 was unwarranted, modifying the order to set it aside without altering other aspects.

Issue 2: Penalty imposition under section 76 of the Finance Act, 1994:

The appellant contested only the penalty under section 76, arguing that the delay in service tax payment was not intentional but due to uncertainties in tax classification during the period. The appellant's counsel highlighted the appellant's bona fide belief, supported by previous litigations and Tribunal decisions favoring works contract service classification. The respondent supported the original penalty imposition. After hearing both sides, the Tribunal considered the appellant's reasonable cause for non-payment, emphasizing the interpretational nature of the issue and the appellant's good faith. Relying on legal precedents and the appellant's circumstances, the Tribunal concluded that the penalty under section 76 was unjustified. Hence, the penalty was set aside, while the rest of the order remained unchanged, resulting in partial allowance of the appeal.

This detailed analysis of the judgment highlights the issues of service classification and penalty imposition under the Finance Act, 1994, providing a comprehensive understanding of the Tribunal's decision and the legal arguments presented by the parties involved.