2009 (8) TMI 469 - AT - Service Tax

Penalty- The assesese firm had provided services to company V under the categories of Rent-a-cab-services and Business Auxiliary Service . The partner of assesese firm is also Director of copany V . Superintendent of Central Excise, while scrutinizing the record of the Company noticed that the assessee had not paid tax in respect of Rent-a-Cab services and Business Auxiliary Services. In the month of January, 2007, the Superintendent of Central Excise directed the assessee to deposit the tax along with interest. The assessee on 24-1-2007 paid service tax of Rs. 1,90,902 and Rs. 2,56,833 for the period from 1-4-2000 to November, 2006 in respect of Rent-a-Cab services and for the period from 1-4-2004 to 31-3-2006 in respect of Business Auxiliary Services. They also paid the interest of Rs. 1,38,140 on 31-5-2006. A show-cause-notice dated 24-9-2007 was issued proposing to impose penalty under sections 76, 77 and 78 of Finance Act, 1994. Held that- I find that there is a contravention of the provisions of the Act with intent to evade payment of tax, so, the Commissioner (Appeals) rightly upheld the penalty under sections 77 and 78 of the Act. The appeal filed by the assessee has no merit. However the asseesee deposited entire amount of tax and interest before issue of show cause notice, in terms of proviso to section 78, penalty would be 25 per cent of tax amount.

Issues:
1. Imposition of penalties under sections 76, 77, and 78 of the Finance Act, 1994.
2. Whether the assessee had a bona fide belief in not paying tax for Rent-a-Cab and Business Auxiliary services.
3. Applicability of section 80 of the Act in the case.
4. Enforcement of penalties under sections 77 and 78.
5. Justification for not imposing penalty under section 76.
6. Application of the first proviso to section 78 regarding penalty calculation.
7. Disposal of appeals filed by the assessee and revenue.

Analysis:
1. The case involved the imposition of penalties under sections 76, 77, and 78 of the Finance Act, 1994. The Superintendent of Central Excise directed the assessee to deposit tax for Rent-a-Cab and Business Auxiliary services. The Original Authority imposed penalties, which were partially set aside by the Commissioner (Appeals). The assessee appealed against penalties under sections 77 and 78, while the revenue appealed against the setting aside of penalties under section 76.

2. The assessee argued that they had a bona fide belief that Rent-a-Cab services were not taxable under the lease agreement with the Company. They claimed ignorance of the withdrawal of the exemption for Business Auxiliary services before 1-4-2004. The assessee contended that they recorded all transactions, did not collect tax from the Company, and invoked section 80 of the Act for non-payment due to genuine belief.

3. The revenue contended that the assessee, being aware of the tax registration of the Company's Director, failed to inquire about tax liability. They argued against the plea of bona fide belief due to the long delay in tax payment and alleged suppression of facts to evade tax. The revenue opposed the application of section 73(3) and disputed the relevance of case laws cited by the assessee.

4. The Tribunal found that the Director of the Company receiving services had signed service tax documents, indicating awareness of tax obligations. Despite precedents where penalties were waived for genuine belief and non-recovery of tax, the Tribunal noted the Director's dual roles and upheld penalties under sections 77 and 78, citing contravention with intent to evade tax.

5. The Tribunal acknowledged the assessee's proper record-keeping and post-detention compliance, justifying the absence of penalty under section 76 as upheld by the Commissioner (Appeals).

6. Regarding penalty calculation under the first proviso to section 78, the Tribunal directed the assessee to pay 25% of the tax amount within 30 days to avoid the full penalty amount, emphasizing compliance with the statutory provision.

7. Ultimately, the Tribunal disposed of the assessee's appeal accordingly and rejected the revenue's appeal, affirming the penalties under sections 77 and 78 while adjusting the penalty amount as per the statutory proviso.

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