2019 (4) TMI 24 - AT - Service Tax

Non-payment of service tax - Man Power Recruitment or Supply Agency Service - quantum of demand - Held that - Ld. Counsel for appellant has furnished a detailed calculation with regard to admitted tax liability as well as the demand raised in the SCN. It is his contention that the department has quantified the demand on the basis of TDS certificate which is inclusive of the service tax paid by them - the matter requires to be remanded to the adjudicating authority for the limited purpose of requantifying the demand after considering the plea put forward by the appellants with regard to incorrect calculation. Penalty u/s 76, 77 and 78 - Held that - There are no grounds of suppression with intention to evade payment of service tax. The delay in discharge of service tax is only due to the delay in receiving the amounts from the customers - the penalty imposed under Section 76 & 78 ibid has to be set aside - penalty imposed under Section 77 is retained. Appeal allowed in part and part matter on remand.

Summary

Issues:
1. Dispute over the quantification of demand based on TDS certificate.
2. Imposition of penalties under Sections 76, 77 & 78 of the Finance Act, 1994.

Analysis:
1. The appellants had registered for providing services under Man Power Recruitment or Supply Agency Service but had not discharged service tax on the entire taxable value, leading to a show cause notice proposing a demand for short paid service tax, interest, and penalties. The original authority confirmed a demand of ?52,87,010/- with interest for the period 01.04.2007 to 31.03.2011 and imposed penalties under Sections 76, 77 & 78 of the Finance Act, 1994. The appellant contended that the demand quantified based on the TDS certificate, which included service tax, was incorrect, and there was an excess payment of ?5,32,406. The delay in paying service tax was attributed to delays in receiving dues from customers. The appellant sought a lenient view and the setting aside of penalties under Sections 76 & 78.

2. The Tribunal noted that the appellant did not dispute the taxability of services but contested the quantum of the demand, arguing that the department had calculated the demand incorrectly based on the TDS certificate. The matter was deemed to require remand to the adjudicating authority for re-quantifying the demand considering the appellant's plea regarding incorrect calculation. The penalties under Sections 76 & 78 were found to be mutually exclusive, with no evidence of suppression to evade service tax payment. The delay in discharging service tax was attributed to delays in receiving payments from customers. Consequently, the Tribunal set aside the penalties under Sections 76 & 78 while retaining the penalty under Section 77. The decision was influenced by a judgment of the jurisdictional High Court of Madras, which upheld the setting aside of penalties upon remand to the lower authority. The appeal was partly allowed and partly remanded based on the above considerations.