2019 (2) TMI 773 - AT - Service Tax

Penalty - Failure to discharge service tax - clearing of agent - cargo handling service - GTA service - storage and warehousing service - entire liability now stands admitted by the appellant - interest liability also stands discharged - period October 2007 to June 2012 - Held that - The appellant has argued that the mere irregularity in not depositing service tax cannot be termed as suppression of facts by the appellant. The non filing of returns, it is submitted, was not a deliberate attempt to evade tax or suppress the information. It is further submitted that the non payment of service tax at the relevant time was on account of the fact that the appellant did not receive the funds and the amount of service tax from their clients. In the above factual matrix, we are of the view that no malafide intention can be attributed to the appellant. However, no malafide intention can be attributed to the appellant. The bonafide nature of the appellant is evident from the fact that the entire amount of service tax alongwith applicable interest stands paid by the appellant even before the impugned Order of adjudication was received by them. It is appropriate to waive the penalties imposed under Section 76, 77 and 78 of the Finance Act, 1994 by taking recourse to Section 80 - demand with interest upheld - appeal allowed in part.

Summary

Issues:
1. Liability for service tax payment and penalties under various sections of the Finance Act, 1994.
2. Allegation of suppression of facts by the appellant.
3. Justification of penalties imposed under Section 76, 77, and 78.
4. Admissibility of waiver of penalties under Section 80 of the Finance Act, 1994.

Analysis:

Issue 1:
The appellant was engaged in providing various services and was found to have not filed periodic ST-3 returns for the period October 2008 to June 2012. The Department issued a Show Cause Notice (SCN) for unpaid service tax and proposed penalties under different sections of the Finance Act, 1994. The adjudicating authority upheld the service tax liability and imposed penalties under Sections 76, 77, and 78. The appellant contended that the total service tax liability along with interest had been paid, even before the SCN was issued, but the authority incorrectly recorded the amount paid. The Tribunal directed the authority to verify the challans to confirm the payment. The interest liability was also discharged, with part paid after the SCN. The Tribunal evaluated the liability for penalty under various sections based on the submissions and evidence presented.

Issue 2:
The appellant argued against the allegation of suppression of facts, stating that all transactions were recorded in their books, and the non-payment of service tax was not deliberate but due to delayed client payments. The Tribunal noted that the Department discovered the non-payment upon scrutiny of the appellant's records and found no malafide intention on the appellant's part. The appellant had paid the entire service tax and interest before receiving the adjudication order, indicating a bona fide nature. The Tribunal considered the appellant's arguments and the circumstances leading to the non-payment of service tax.

Issue 3:
The Department justified the penalties imposed by stating that the appellant collected service tax from customers but did not deposit it with the government, constituting suppression of facts. The Department argued against the relevance of case laws cited by the appellant. The Tribunal reviewed the facts, noting that the transactions were recorded in the appellant's accounts but the service tax was not fully paid on time. The Tribunal found no malafide intention and decided to waive the penalties under Sections 76, 77, and 78 under Section 80 of the Finance Act, 1994, while upholding the service tax demand, interest payment, and late fees for delayed ST-3 returns.

Issue 4:
Considering the circumstances of the case, the Tribunal decided to partly allow the appeal, waiving the penalties under Sections 76, 77, and 78 but upholding the service tax demand, interest payment, and late fees for late ST-3 returns. The Tribunal highlighted the appellant's bonafide nature in paying the entire service tax and interest before the adjudication order was received, leading to the decision to waive the penalties under Section 80 of the Finance Act, 1994.