2018 (11) TMI 26 - AT - Service Tax

Penalty u/s 77 and 78 of FA - Liability of service tax - Manpower Supply Agency Service - reverse charge mechanism - Held that - The manpower supply service is covered under the definition of input service and the input credit is available to the appellant and thereby making the whole transaction as revenue neutral - no malafide intention can be inferred if the transaction is revenue neutral and extended period can also not be invoked. Further, the impugned period of dispute is from July 2012 to September 2013 whereas the SCN was issued on 08.12.2016 which is beyond the normal period of one year. Further, the only ground on which the Commissioner (A) has invoked the extended period is that the appellants have not disclosed the said fact in their return and thereby suppress the material facts. The penalty is not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Appeal against rejection of appeal by Commissioner (A)
- Liability for Service Tax under reverse charge mechanism
- Applicability of extended period for demand of tax
- Imposition of penalties under Section 77 and 78 of the Act

Analysis:
1. Appeal Rejection: The appeal was filed against the order of the Commissioner (A) rejecting the appellant's appeal. The appellant contended that the impugned order was unsustainable as it failed to appreciate the provisions of the Act and relevant rules. The appellant argued that they were initially unclear about the scope of manpower supply service under the reverse charge mechanism. They claimed that they rectified the omission and paid the Service Tax immediately upon being informed by auditing officers. The appellant asserted that the transaction was revenue neutral and relied on various court decisions to support their argument.

2. Liability for Service Tax: The appellant argued that the manpower supply service fell under the definition of input service, making them eligible for credit if the tax was paid. They emphasized that the transaction was revenue neutral, and there was no malafide intention. The Tribunal found that the appellant paid the Service Tax and interest before the issuance of Show Cause Notice (SCN) and that the transaction was indeed revenue neutral. The Tribunal also noted that the SCN was issued beyond the normal one-year period, and the appellant's failure to disclose the facts in their return did not amount to suppression of facts.

3. Extended Period Applicability: The Commissioner (A) invoked the extended period based on the appellant's failure to disclose facts in their return. However, the Tribunal, citing the decision in Uniworth Textiles Ltd., held that mere non-payment of duty does not constitute suppression of facts. As the transaction was revenue neutral, the extended period was deemed inapplicable.

4. Penalties Imposition: The Commissioner (A) imposed penalties under Sections 77 and 78 of the Act. The Tribunal, following precedents, held that when a transaction is revenue neutral, no penalty can be imposed. Relying on the decision in Jain Irrigation System, the Tribunal set aside the penalties imposed by the Commissioner (A) and allowed the appeal with consequential relief.

In conclusion, the Tribunal found in favor of the appellant, setting aside the penalties imposed and allowing the appeal with consequential relief. The judgment emphasized the revenue-neutral nature of the transaction, the inapplicability of the extended period, and the lack of malafide intention on the part of the appellant.