2019 (3) TMI 1433 - AT - Service Tax

Imposition of penalty u/s 78 of FA - service tax with interest and penalty u/s 77 paid on being pointed out - no intent to evade - extended period of limitation - Held that - The appellant has discharged the service tax of ₹ 36,69,976/- along with interest under Manpower Recruitment or Supply Agency Service and Business Auxiliary Service much before the issuance of the Show Cause Notice - Further, apart from a bald allegation that the appellants have suppressed facts with an intention to evade payment of service tax, there is no positive act of suppression brought forth by the Department so as to attract the ingredients of invocation of extended period of limitation - the imposition of penalty under Section 78 on the amounts under Manpower Recruitment or Supply Agency Service and Business Auxiliary Service are unwarranted and requires to be set aside. Time limitation in respect of the TDS amount - Held that - No positive act of suppression has been adduced by the Department. Further, as per records, the appellant had not discharged the service tax on the TDS amount for the reason that the bills with respect to this amount were pending for more than five years. Taking all these facts into consideration, the demand of service tax on the TDS amount is time-barred - The demand under this category is therefore set aside on the ground of limitation. The impugned Order is modified to the extent of setting aside the penalty with respect to Manpower Recruitment or Supply Agency Service and Business Auxiliary Service - demand for non-inclusion of TDS amount is set aside on the ground of limitation - appeal allowed in part.

Issues:
- Non-payment of service tax under 'Manpower Recruitment or Supply Agency Service' and 'Business Auxiliary Service' for the period from June 2008 to March 2009.
- Discrepancy in the inclusion of TDS amount in the gross amount received from clients.
- Imposition of penalties under Sections 77 and 78 of the Finance Act, 1994.
- Allegation of suppression of facts with the intention to evade payment of service tax.
- Applicability of the extended period of limitation for demanding service tax.
- Justification for setting aside penalties and demands based on limitation.

Analysis:
1. Non-payment of service tax: The appellant had not paid the service tax under 'Manpower Recruitment or Supply Agency Service' and 'Business Auxiliary Service' for the specified period. The appellant later paid the service tax liability along with interest and penalty under Section 77 of the Finance Act, 1994. The audit revealed the discrepancy, leading to the issuance of a Show Cause Notice demanding the unpaid service tax and penalties.

2. Discrepancy in TDS amount: The appellant failed to include the TDS amount received from clients in the gross amount for service tax calculation. The appellant argued that financial difficulties and delayed payments from clients caused the non-payment of service tax on the TDS amount. The appellant contended that the demand for the TDS amount was time-barred due to delayed bill payments and lack of awareness regarding filing returns without full payment of service tax.

3. Penalties and suppression of facts: The appellant argued against the penalties imposed, stating that the service tax liability was paid before the Show Cause Notice was issued. The Department alleged suppression of facts to evade service tax payment, invoking the extended period of limitation. However, the Tribunal found no concrete evidence of suppression by the appellant, leading to the setting aside of penalties under Section 78 for 'Manpower Recruitment or Supply Agency Service' and 'Business Auxiliary Service.'

4. Extended period of limitation: The Tribunal analyzed the timeline of events and noted that the Show Cause Notice was issued significantly later after the audit findings. Lack of positive acts of suppression and delayed bill payments by clients led to the conclusion that the demand for service tax on the TDS amount was time-barred. Consequently, the demand under this category was set aside based on the ground of limitation.

5. Final Decision: The Tribunal partially allowed the appeal by setting aside penalties related to 'Manpower Recruitment or Supply Agency Service' and 'Business Auxiliary Service' and the demand for non-inclusion of the TDS amount due to the limitation period. The impugned Order was modified accordingly, providing consequential reliefs as per the law.

This detailed analysis of the judgment highlights the key issues, arguments presented by both parties, legal reasoning, and the final decision rendered by the Appellate Tribunal CESTAT CHENNAI.

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