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2018 (12) TMI 1365 - HC - Service TaxPenalty u/s 77 of FA - Issue on doubt - site formation service - Government of India, Ministry of Finance had a doubt till the issuance of Circular dated 29.10.2006 whether service tax was leviable on the services of site formation - Held that - In so far as the order which took converse view and assailed by the Assessee in other matters are concerned, there the consideration ends with a finding on nature of contract. The CESTAT holds that contract of Assessee with WCL is for a site formation. There the provisions of Section 80 of Finance Act or then circular dated 12.11.2007 are totally omitted from consideration. The said order, therefore, also show non application of mind. Extended period of limitation - Section 73 1 of the Finance Act, 1994 - Held that - Impact of confusion about nature of activity undertaken is already directed to be looked into and matters are remanded back. If claim of assessee, that service tax is paid on transportation charges is incorrect, effect thereof or then entitlement of department to invoke extended period due to is may be a material consideration. This also appears to have escaped attention. This view, therefore, again shows non application of mind. The impact of clarificating circular dated 12.11.2007 has not been considered at all. As the other matters need a relook, it is in the interest of justice that this view is also given a fresh thought by CESTAT. Appeal restored back to file of the CESTAT for its further consideration as per law.
Issues involved:
1. Contrary views by Central Excise and Service Tax Appellate Tribunal (CESTAT) on penalty imposition under Section 77 of the Finance Act, 1994. 2. Dispute regarding the nature of the contract between Assessee and WCL for excavation and removal of overburden. 3. Challenge to the imposition of penalty due to a bona fide dispute in relation to the nature of the activity. 4. Justification of reversing the invocation of the extended period of limitation under Section 73[1] of the Finance Act, 1994. Analysis: Issue 1: Contrary views on penalty imposition under Section 77: The High Court noted that the CESTAT had taken two contrary views on the penalty imposition under Section 77 of the Finance Act, 1994. The court observed that necessary application of mind was lacking in the CESTAT's decisions, leading to the need for remand. The court highlighted the question of law regarding the imposition of penalty when there was doubt regarding the levy of service tax, emphasizing the need for clarity and consistency in the tribunal's decisions. Issue 2: Dispute over the nature of the contract: The High Court examined the dispute over the nature of the contract between the Assessee and WCL for excavation and removal of overburden. The court noted that while the existence of the contract was not in dispute, the question revolved around whether the contract was for 'mining' or 'site formation'. The Assessees contended that the contract was for site formation, making them liable to pay service tax. The CESTAT's finding that the contract was for site formation was not disputed by the Assessees. Issue 3: Challenge to penalty imposition due to a bona fide dispute: The Assessees challenged the imposition of penalty, arguing that there was a bona fide dispute regarding the nature of the activity, and therefore, they should not be held at fault. They claimed that the penalty imposition was unjust as there was confusion and lack of clarity until a clarification was issued on 12.11.2007. The Assessees maintained that the penalty should not be demanded due to the genuine uncertainty surrounding the service tax liability. Issue 4: Reversal of the invocation of extended period of limitation: The High Court considered the justification for reversing the invocation of the extended period of limitation under Section 73[1] of the Finance Act, 1994. The court noted that confusion and problems faced during the infancy stage of implementation were cited as reasons for granting the Assessee the benefit and denying it to the department. The court highlighted the need for a fresh consideration of the impact of the clarificating circular dated 12.11.2007 and the entitlement of the department to invoke the extended period due to confusion. In conclusion, the High Court found the CESTAT's orders unsustainable due to the lack of application of mind and failure to address crucial legal provisions and clarifications. The court quashed the decisions and restored the appeals back to the CESTAT for further consideration in accordance with the law, emphasizing the importance of clarity, consistency, and thorough examination of all relevant factors in tax disputes.
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