2019 (12) TMI 236 - AT - Service Tax

Imposition of penalties - Security Agency Service - amount of service tax collected was not paid to the Department - the appellant has paid all the taxes along with interest before the issue of SCN - HELD THAT - The appellant did not pay the service tax and also did not file the return and short payment of service tax was detected by the Department during the audit from the Books of Accounts of the assessee or the appellant wherein the appellant has shown the duty liability of service tax payable to the Department. As soon as the Department audit pointed out the short payment of duty, the appellant along with interest has paid the duty before the issue of show-cause notice. Further, the original authority after considering all the evidences has confirmed the duty along with interest and also appropriated the amount of duty and interest paid by the appellant but the original authority dropped the penalty under Section 76 and 78 by exercising their discretion under Section 80 after observing that there was no mens rea on the part of the appellant not to pay the service tax. Penalty u/s 76 and 78 of FA - HELD THAT - Once the appellant has shown the duty liability in their Books of Accounts which clearly means that there was no suppression of material fact to evade the payment of tax and non-payment was on account of financial difficulties which has been proved by the assessee on record by producing sufficient documentary evidence - no penalty is imposable under Section 76 and 78 if there is a reasonable cause for not paying the service tax. Penalty u/s 77 is upheld - penalty u/s 76 and 78 set aside - appeal allowed in part.

Summary

Issues:
- Appeal against imposition of penalty under Section 78 of the Act.
- Appellant's compliance with tax payment and interest.
- Department's appeal against dropping of penalty under Section 76 and 78.
- Arguments regarding intention to evade payment of service tax.
- Appeal's timeliness and limitation.
- Appellant's financial difficulties as a reason for non-payment.
- Precedents cited for penalty imposition.

Analysis:
The appeal before the Appellate Tribunal CESTAT Bangalore challenged the imposition of an equivalent penalty under Section 78 of the Act due to non-payment of service tax amounting to ?49,49,612. The appellant, a security agency service provider, had paid the tax and interest before the show-cause notice was issued. The original authority confirmed the demand but did not impose penalties under Sections 76 and 78, citing the appellant's tax compliance and lack of intent to evade payment. The Revenue appealed against dropping the penalties, leading to the Commissioner (Appeals) accepting the appeal regarding Section 78 but maintaining the dropping of penalty under Section 76.

The appellant's counsel argued that the appellant had paid all taxes and interest before the show-cause notice, emphasizing the lack of intent to evade payment. The counsel cited precedents and discretionary power under Section 80 to support the appellant's case. Additionally, the appeal's timeliness was questioned, arguing it was filed beyond the statutory limit. The appellant's financial difficulties were highlighted as a reason for non-payment, supported by relevant case laws emphasizing mens rea for penalty imposition.

On the other hand, the Department defended the original order, pointing out the appellant's failure to file returns and disclose the short payment of service tax detected during audit. After considering both parties' submissions and evidence, the Tribunal found that the appellant had not paid the service tax initially but rectified it promptly after the audit revealed the shortfall. The Tribunal upheld the dropping of penalties under Sections 76 and 78, noting the lack of intent to evade payment and the appellant's financial constraints as reasons for non-payment. The penalty imposed under Section 77 for other violations was maintained at ?10,000. Citing the precedent and the appellant's compliance with tax liabilities, the Tribunal partially allowed the appeal, setting aside the penalty under Section 78 but upholding the penalty under Section 77.

In conclusion, the Tribunal's decision on the appeal emphasized the importance of compliance, lack of intent to evade payment, and financial difficulties as factors in penalty imposition under the relevant sections of the Act. The judgment provided a detailed analysis of the appellant's actions, the Department's contentions, and the legal precedents that guided the decision-making process.