2007 (12) TMI 162 - AT - Service Tax

Delay in payment of tax & filing of return - commercial or industrial construction - Service tax was newly introduced on this service - appellant voluntarily obtained registration and deposited the tax along with interest before issue of SCN - no suppression of fact with intent to evade payment of tax - held that Section 78 cannot be invoked for imposing penalty penalty u/s76 and 77 is upheld appeal partly allowed

Summary

Issues:
Imposition of penalty under Sections 76, 77, and 78 of the Finance Act, 1994 for non-payment of service tax and delay in registration.

Analysis:
1. Issue of Penalty under Sections 76, 77, and 78:
The appellant appealed against the penalty imposed under Sections 76, 77, and 78 of the Finance Act, 1994. The appellant, engaged in providing commercial or industrial construction services, entered into an agreement for construction in June 2004 but only obtained registration under the Service Tax Act in August 2005. The appellant deposited the tax with interest before the show cause notice was issued. The adjudicating authority confirmed the tax demand and imposed penalties under the mentioned sections. The Commissioner (Appeals) upheld the order. The appellant argued that the penalty was unwarranted as they had voluntarily obtained registration and paid the tax before the show cause notice. The appellant also contended that there was no suppression of facts to evade tax. The Department, however, argued that the appellant was not registered with the Central Excise Authorities despite the agreement indicating tax payment. The Tribunal found that there was no suppression of taxable service value, as the transaction was properly recorded. Consequently, the penalty under Section 78 was set aside, while penalties under Sections 76 and 77 were upheld due to the delay in tax payment and return filing.

2. Conclusion:
The Tribunal, after considering the arguments from both sides and reviewing the records, concluded that while penalties under Sections 76 and 77 were justified due to the delay in tax payment and return filing, the penalty under Section 78 was not applicable as there was no evidence of suppressing the value of taxable services. Therefore, the penalty under Section 78 was set aside, and the penalties under Sections 76 and 77 were upheld. The appeal was allowed accordingly.