2019 (2) TMI 1250 - AT - Service Tax

Penalty u/s 77 and 78 of FA - entire service tax demand along with interest before issuance of the show cause notice - Manpower Recruitment and Supply agency Service - Held that - It is brought out from the records that the entire service tax liability along with interest has been paid up by the appellant before issuance of the show cause notice. Sub-section (3) of Section 73 states that when the service tax along with interest is paid up as pointed out by the officers or on own ascertainment by the assessee, no penalty are to be imposed. Tribunal in the case of Onward E-Services Ltd. Vs. Commissioner of Service Tax, Mumbai 2018 (5) TMI 323 - CESTAT MUMBAI has also held that Section 73(3) would apply when service tax along with interest has been paid up by the assessee. Penalty set aside - demand with interest upheld - appeal allowed in part.

Summary

Issues:
1. Appellant's liability for service tax, interest, and penalties.
2. Applicability of Section 73(3) of the Finance Act, 1994 regarding penalties.
3. Interpretation of relevant case laws by the Hon'ble High Court of Karnataka and Tribunal.

Analysis:
1. The case involved the appellant, a service provider under Manpower Recruitment and Supply agency Service, who supplied manpower to a company. Upon audit, it was discovered that the appellant had not fulfilled their service tax liability for a specific period. Consequently, a show cause notice was issued, demanding service tax, interest, and penalties. The original authority and the Commissioner (Appeals) upheld the demand and penalties, leading to the current appeal.

2. The appellant contended that they had already paid the entire service tax liability along with interest before the show cause notice was issued. Citing Section 73(3) of the Finance Act, 1994, the appellant argued that no penalties should have been imposed once the service tax and interest were settled. The appellant relied on a decision by the Hon'ble High Court of Karnataka and emphasized that the waiver of penalties should apply in such circumstances.

3. After hearing both parties, the Tribunal considered the appellant's argument and the relevant legal precedents. Referring to the decision of the Hon'ble High Court of Karnataka and a Tribunal case, the Tribunal agreed that Section 73(3) should be applied when the service tax and interest were paid by the assessee. The Tribunal concluded that since the appellant had cleared the service tax liability along with interest before the show cause notice, the penalties imposed could not be sustained. Therefore, the Tribunal set aside the penalties while maintaining the rest of the adjudged dues intact.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the penalties imposed due to the timely payment of service tax and interest, in line with the provisions of Section 73(3) of the Finance Act, 1994 and relevant legal precedents.