2019 (2) TMI 589 - AT - Service Tax

Penalty u/s 77 and 78 of FA - PSU - utilization of ineligible CENVAT credit - short payment of Service Tax on Reverse Charge Mechanism on Works Contract Service - no intent to evade - Held that - The ratio of the decision in the case of M/S. MODERN WOOLENS VERSUS COMMISSIONER OF CENTRAL EXCISE 2016 (11) TMI 1353 - CESTAT NEW DELHI is squarely applicable in the present case wherein it has been consistently held that in the case of PSU, there cannot be any malafide intent to avail irregular and unavailable credit Penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against penalty imposed for ineligible CENVAT credit and short payment of Service Tax on Works Contract Service under 'Reverse Charge Mechanism'.

Analysis:
The appeal was filed against an order rejecting the appeal of the appellant and upholding the penalty imposed by the Original Authority. The appellant, a PSU providing telecommunication services, was alleged to have wrongly availed excess credit and not paid the Service Tax under 'Reverse Charge Mechanism' on Works Contract Service for a specific period. The Original Authority confirmed the demand, imposed penalties under relevant sections, and the Commissioner upheld the penalty citing the omission of Section 80 of the Finance Act. The appellant contended that Section 80 was in force during the relevant period and being a PSU, there was no malafide intent to evade tax as the tax liability was paid. Various decisions were relied upon by the appellant to support the argument.

The arguments were heard from both sides, and after considering the submissions and cited decisions, it was noted that the appellant, being a PSU and a major tax-payer, had rectified the excess credit and paid the Service Tax. The penalties imposed were challenged under Sections 77 & 78, which were upheld by the Commissioner. However, based on the consistent application of decisions stating that PSUs do not have malafide intent in irregular credit availment, the penalty was set aside, and the appeal of the appellant was allowed.

In conclusion, the penalty imposed on the appellant for ineligible CENVAT credit and short payment of Service Tax on Works Contract Service under 'Reverse Charge Mechanism' was set aside by the Appellate Tribunal, citing the appellant's status as a PSU and the absence of malafide intent. The decision was based on the application of relevant legal provisions and precedents supporting the appellant's arguments.