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2021 (4) TMI 518 - AT - Service TaxLevy of penalty u/s 78 of FA - allegation of evasion of service tax - Legal Opinion received from their empanelled advocates - Reverse charge mechanism - intent of suppression of facts not present - HELD THAT - The condition precedent for invoking Section 78 ibid. viz. that there should be non-levy, short levy, short payment or erroneous refund of Service Tax by reason of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of the Chapter or the rules made thereunder with the intention to evade payment of Service Tax, is not satisfied and accordingly, Section 78 ibid. would not be attracted in the present case - The assessee being a public sector undertaking of the Government of India is also an additional factor to hold that any mala fide intention to evade payment of Service Tax would not be attributed, to levy penalty under Section 78 ibid. The penalty levied under Section 78 ibid is not justified - Appeal allowed - decided in favor of appellant.
Issues:
Levy of penalty under Section 78 of the Finance Act, 1994. Analysis: The appellant raised doubts on the applicability of Service Tax due to the nature of payments made to advocates on behalf of customers. The draft Order-in-Original did not address these doubts, indicating the appellant's good faith as a public sector undertaking. The alleged liability in the draft order was derived from the appellant's own books, suggesting no intention to evade payment. Therefore, the conditions for invoking Section 78, such as non-levy or short payment due to fraud or collusion, were not met, leading to the conclusion that Section 78 was not applicable in this case. Additionally, being a public sector undertaking of the Government of India, any mala fide intention to evade Service Tax was deemed unlikely. This view was supported by previous judgments, including M/s. Karnataka State Tourism Development Corporation v. Commissioner of Central Tax, Bangalore North, M/s. Karnataka State Tourism Dev. Corpn. Ltd. v. C.S.T., Bangalore, and B.S.N.L. v. Commissioner of Central Excise, Ahmedabad. Considering these factors, the penalty under Section 78 was deemed unjustified, leading to the setting aside of the impugned order and allowing the appeal. The judgment was pronounced in open court on 12.04.2021 by Mr. P. Dinesha, Member (Judicial) at the Appellate Tribunal CESTAT Chennai. The appellant was represented by Shri S. M. Khaja Muyeenuddeen, a Chartered Accountant, while the Revenue was represented by Shri M. Jagan Babu, an Authorized Representative. The period in question for the Show Cause Notice was from 01.07.2012 to 30.06.2017, with the main contention revolving around the levy of penalty under Section 78 of the Finance Act, 1994. The appellant's appeal was successful due to the lack of evidence supporting fraudulent intent or evasion of Service Tax, especially given the appellant's status as a public sector undertaking.
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