2010 (5) TMI 113 - AT - Service Tax

Rent-a-cab operators- The assessees were registered providers of services and were adjusting service tax liability when services were rendered by them to others and the oral instructions of NHAI cannot be a ground to hold that they were under a bona fide belief that they were not required to pay any service tax for Rent-a-cab service provided to NHAI. Held that- they had paid at the rate of 100%, while they were entitled to 60% abatement. In this view of the matter, the tax liability is required to be recalculated and penalty, to the amount of tax evaded is required to be imposed. The appeal is thus partly allowed as above.

Summary

Issues:
Imposition of penalty for non-payment of service tax by Rent-a-cab operators during a specific period.

Analysis:
The judgment delivered by Hon'ble Smt. Jyoti Balasundaram, Vice-President of the Appellate Tribunal CESTAT, Chennai, pertains to the appeal of Rent-a-cab operators against the penalty imposed on them for non-payment of service tax from April 2005 to March 2006. The appellants did not dispute the demand for service tax and had paid the tax along with interest. Their defense was based on the claim that they were orally instructed by the National Highways Authority of India (NHAI) to withhold payment of service tax until further instructions, which they believed absolved them from any suppression of facts. However, the Vice-President found no merit in this argument as the appellants were registered service providers and should have been aware of their tax liabilities. The oral instructions from NHAI were not considered a valid reason for non-payment of service tax. Consequently, the Vice-President agreed with the Revenue that the appellants had indeed suppressed the fact of providing services to NHAI and collecting charges from them.

Moreover, it was noted that penalty under Section 76 was set aside as Sections 76 and 78 of the Finance Act, 1994 are considered mutually exclusive. The appellants raised the issue of being entitled to abatement under Notification No. 9/2004-S.T. dated 09.07.2004, which was extended for certain months as per the show-cause notice. The Vice-President acknowledged the validity of this submission and accepted that the appellants had overpaid tax during a specific period due to being entitled to a 60% abatement instead of paying at the rate of 100%. Consequently, the tax liability needed to be recalculated, and the penalty imposed was required to be based on the amount of tax evaded.

In conclusion, the appeal of the Rent-a-cab operators was partly allowed by the Vice-President, with the penalty under Section 76 set aside and recalculations made for the tax liability based on the abatement entitlement. The judgment highlights the importance of complying with tax obligations and the consequences of suppressing relevant information regarding service tax payments.