2015 (7) TMI 149 - AT - Service Tax

Levy of penalty - Demand of service tax - Commercial Construction Services - Held that - Appellant is not contesting the issue of payment of duty and interest thereon even though according to the appellant they have an arguable case on merits. The contention of the appellant is that the entire amount of tax along with interest was paid as soon as pointed out, therefore, no penalty is imposable as there is no fraud, collusion or suppression with intention to evade payment of duty on the part of the appellant - appellant is a small time contractor and did not collect the service tax payable from its service recipients. The service tax was paid by the appellant, along with interest, by backward calculation from the total receipts of the contracted price. Learned AR could not produce any document from the records that service tax payable was recovered by the appellant separately in the invoices and kept the same with him. In the absence of indication of fraud, suppression etc. with intention to evade payment of duty the case laws 2014 (10) TMI 483 - MADRAS HIGH COURT relied upon by the appellant are applicable to the facts of the present case - Decided in favour of assessee.

Summary

Issues:
1. Appellant's payment of service tax and interest.
2. Imposition of penalties on the appellant.
3. Applicability of Section 80 of the Finance Act, 1994.
4. Arguments by both sides regarding tax collection and payment.
5. Case laws and CBEC Circulars cited by the appellant.
6. Observations and decision of the Tribunal.

Analysis:
The appeal was filed concerning the Order-in-Appeal (OIA) issued by the Commissioner, which the appellant contested. The appellant, represented by a Chartered Accountant, acknowledged paying the entire service tax and interest promptly upon identification of the underpayment. Although the appellant believed they had a valid case, they chose not to dispute it during the proceedings. They argued that since the tax and interest were paid in full, there was no need for a show cause notice. Additionally, they claimed protection under Section 80 of the Finance Act, 1994, stating they were under a reasonable belief that their activities did not fall under Commercial Construction Services. The appellant emphasized that no service tax was separately recovered from the recipients but was calculated backward from the total amount received.

The Revenue, represented by an Authorized Representative, contended that penalties were rightfully imposed on the appellant and defended the lower authorities' decisions. They highlighted that the appellant had collected tax from the service recipients but failed to remit it to the Revenue's exchequer. After hearing both parties and reviewing the case records, the Tribunal noted that the appellant did not contest the duty and interest payment, despite believing they had a valid argument. The Tribunal agreed with the appellant's stance that since the entire tax and interest were paid promptly, penalties should not apply, as there was no intent to evade payment. The Tribunal referenced various case laws and CBEC Circulars cited by the appellant to support their decision.

The Tribunal found that the appellant, a small contractor, did not separately collect the service tax due from the recipients but paid it along with interest by calculating backward from the total contract price. The Authorized Representative failed to provide evidence that the tax was separately recovered by the appellant in the invoices. As there was no evidence of fraud or suppression to evade duty payment, the Tribunal deemed the case laws cited by the appellant applicable. Consequently, the appeal filed by the appellant against the penalties imposed was allowed, and the Tribunal ruled in favor of the appellant, thereby allowing the appeal.