2018 (10) TMI 761 - AT - Service Tax

Penalty u/s 76, 77 and 78 of FA - Short payment of service tax - entire amount of service tax along with interest of ₹ 50,32,740/- stands paid by the appellant - invocation of section 80 - Held that - The appellant received the service tax amount from the recipient of service and it is their duty to discharge the service tax in time - this is not a fit case to invoke Section 80 of the Finance Act, 1994 as there has been deliberate failure on the part of the appellant in not paying service tax in time and also non-disclosure of the receipt of the amount from the recipient of the service by filing periodical ST-3 returns with the department. Considering the entire amount of service tax with interest has been paid, therefore the penalty imposed under Section 78 of the Finance Act, 1994 is upheld and penalty imposed under Section 76 is set aside - appeal allowed in part.

Summary

Issues:
1. Appellant's liability for service tax under various taxable services.
2. Reason for short payment of service tax.
3. Appeal against penalties imposed under Sections 76, 77, and 78 of the Finance Act, 1994.

Analysis:

Issue 1: Appellant's liability for service tax under various taxable services
The case involved the appellant providing taxable services like construction, supply of tangible goods, manpower recruitment, site preparation, and business auxiliary services during the relevant period. A discrepancy was noted in the service tax paid compared to the value shown in their ST-3 return. Consequently, a show cause notice was issued for recovery of service tax. The Commissioner confirmed the demand with interest and penalties under relevant sections of the Finance Act, 1994, leading to the present appeal.

Issue 2: Reason for short payment of service tax
The appellant acknowledged the liability for service tax but attributed the short payment to non-receipt of dues from National Highway Authority of India in time. The appellant initiated arbitration proceedings regarding this matter, and the entire service tax amount along with interest was paid. The appellant sought waiver of penalties under Section 80 of the Finance Act, 1994, citing reasonable cause for the delay in discharging the service tax.

Issue 3: Appeal against penalties imposed
The main issue revolved around the justification of penalties imposed under various provisions of the Finance Act, 1994. The Tribunal noted the Commissioner's observation that the appellant had received the service tax amount from the recipient but failed to discharge the tax in time. The Tribunal agreed with the Commissioner's findings, stating that there was a deliberate failure on the appellant's part in not paying the service tax promptly. While upholding the penalty under Section 78, the Tribunal set aside the penalty under Section 76, partially allowing the appeal.

In conclusion, the Tribunal modified the impugned order by upholding the penalty under Section 78 but setting aside the penalty under Section 76. The appeal was partly allowed based on the payment of the entire service tax amount with interest.