2009 (5) TMI 374 - AT - Service Tax

Multi System operator services- suppression- The assessee was engaged in rendering services of multi-system operator. It was also doing internet advertisement service. The department held that the assessee had not discharged the service tax liability with respect to internet advertisement service. Adjudicating authority imposed penalty u/s 76 and 78, Commissioner(Appeals) drop the penalty u/s 78 as there is no malafide intention to evade tax thus there is no suppression. Held that- there was no infirmity in the decision of the Commissioner (Appeals) and the same was to be upheld.

Summary

Issues:
1. Determination of service tax liability for Multi-System Operator (MSO) and Internet Advertisement Service.
2. Assessment of short payment of service tax.
3. Evaluation of irregular input service credit availed.
4. Consideration of penalty and interest imposition.

Analysis:
1. The case involved a dispute regarding the service tax liability of the Respondents who were providing services as a Multi-System Operator (MSO) and offering Internet Advertisement Service. The Original authority concluded that the Respondents were not functioning as a Cable Operator during a specific period, thereby relieving them of liability. However, the Original authority upheld the service tax demand for 'Internet and Advertisement Service' and IP charges related to internet services. The Commissioner (Appeals) set aside the penalty under section 78 but upheld the remaining part of the Order-in-Original, leading to the Revenue's appeal challenging this decision.

2. The Revenue contended that the Respondents had not disclosed the correct taxable value to the Department, which was discovered upon verification. The Revenue invoked the extended time-limit under section 73 of the Act due to the alleged suppression of facts and misdeclaration of taxable value. The Revenue argued that the penalty under section 78 was rightfully imposed by the Assistant Commissioner, as the Respondents did not dispute the charges of suppression and complied with the service tax demand. The Commissioner (Appeals) was criticized for setting aside the penalty under section 78, as it was deemed mandatory when the extended period under section 73 was invoked for service tax recovery.

3. Upon careful review of the case records, the Tribunal found no evidence of mala fide intention to evade tax by the Respondents. The Commissioner (Appeals) correctly recognized this and decided to set aside the penalty under section 78. The Tribunal upheld the Commissioner (Appeals)'s decision, emphasizing the absence of any infirmity in the ruling. Consequently, the Revenue's appeal was rejected, affirming the Commissioner (Appeals)'s order.