2009 (10) TMI 242 - AT - Service Tax

Manpower recruitment and supply services- The appellant is engaged in providing manpower recruitment and supply services. It was pointed to him by the department that he was liable to pay service tax with effect from 16-6-2005 and based on the advice given by the department appellant registered himself as service provider on 1-4-2006 and paid service tax amount with interest on 22-10-2007. Subsequently on 8-4-2008 show-cause notice was issued and after adjudication and appellate proceedings penalty of Rs. 2, 12, 905 under sections 76 and 78 of Finance Act 1994 and penalty of Rs. 1, 000 under section 78 have been imposed. Party is in appeal against imposition of penalty and Revenue has also filed appeal against the reduction of penalty to 25 per cent under section 78 of Finance Act 1994 by the Commissioner (Appeals). Held that- I consider that provisions of section 73(3) apply to the present case and the penalties imposed under various sections of Finance Act 1994 are not imposable. Accordingly impugned order as far as it relates to imposition of penalties is set aside. Appeal filed by the Revenue is rejected.

Summary

Issues:
1. Liability to pay service tax from a specific date.
2. Imposition of penalties under sections 76 and 78 of Finance Act, 1994.
3. Applicability of section 73(3) of Finance Act, 1994.
4. Interpretation of intention to evade tax.
5. Availability of Cenvat credit for service tax paid.

Analysis:
1. The appellant was informed by the department about the liability to pay service tax effective from a particular date. Following this advice, the appellant registered as a service provider and paid the service tax with interest. Subsequently, a show-cause notice was issued, leading to penalties being imposed under sections 76 and 78 of the Finance Act, 1994. The appellant contested the penalties through an appeal, while the Revenue also appealed against the reduction of penalty by the Commissioner (Appeals).

2. The appellant, represented by a learned Chartered Accountant, argued that the firm was small, primarily functioning as a labour contractor since April 2005. It was highlighted that the authorized signatory made an error due to ignorance of the law, but upon becoming aware of the liability, the appellant paid the service tax with interest. The appellant relied on specific Tribunal decisions to support the contention that penalties should be set aside, invoking section 73(3) of the Finance Act, 1994.

3. The Senior Departmental Representative (SDR) contended that the appellant delayed payment of service tax by over a year after being informed of the liability, and argued against accepting ignorance of the law as a valid defense.

4. Upon considering the submissions, the Technical Member noted that the appellant registered and paid the tax upon being informed of the liability. The absence of evidence indicating an intention to evade tax was highlighted, along with the fact that the service tax paid was available as Cenvat credit due to services provided to Central Excise assesses. Citing relevant Tribunal decisions and the circumstances of the case, the Technical Member concluded that section 73(3) applied, and the penalties imposed were not justified. Consequently, the order regarding penalty imposition was set aside, with the Revenue's appeal being rejected.