2015 (12) TMI 1164 - AT - Service Tax

Short payment of service tax - Security service - guilty of wilful mis-statement/suppression of fact - Penalty u/s 78 - Held that - Appellants have been collecting service tax as part of gross amount charged and therefore non-deposit thereof on the ground of financial crunch is totally unacceptable. Financial crunch is no circumstance can justify non-deposit of service tax collected. Obviously thus there is not a great deal of discussion required to conclude that the appellants deliberately short paid the service tax due and the impugned order does not suffer from any appealable infirmity on merit. The appellants during the hearing have pleaded that for penalty under Section 78 the benefit of payment of 25% of the mandatory equal penalty as per proviso to Section 78 of the Finance Act should be given to them as the same had not been done in the impugned order. - No merit in the appeals except to the extent that the benefit of 25% of mandatory equal penalty under Section 78 ibid is required to be extended to the appellants - Decided partly in favour of assessee.

Summary

Issues involved:
1. Service tax demands, interest, and penalties confirmed in Orders-in-Original.
2. Short payment of service tax due to wilful mis-statement/suppression of facts.
3. Appellants' contention of no malafide intention for penalty imposition.
4. Financial hardship as a reason for delayed payment.
5. Benefit of reduced penalty under Section 78 of Finance Act.
6. Applicability of Gujarat High Court judgment regarding penalty imposition.

Analysis:
The judgment by Appellate Tribunal CESTAT NEW DELHI involved appeals against Orders-in-Original confirming service tax demands, interest, and penalties. The investigation revealed that the appellants were charging service tax for Security Agency Service but had not paid the commensurate amount, leading to short payment. The appellants argued that financial hardship due to operational downfall caused the delayed payment, denying any malafide intention. However, the Tribunal found the non-deposit of collected service tax unjustifiable, stating that financial crunch cannot excuse non-payment. The Tribunal concluded that the appellants deliberately short paid the service tax, upholding the impugned order's merit.

Regarding penalty imposition under Section 78 of the Finance Act, the appellants sought the benefit of reduced penalty. Citing a Gujarat High Court judgment, the Tribunal acknowledged the requirement to offer the option of reduced penalty to the assessee. Consequently, the Tribunal decided to extend the benefit of 25% of the mandatory equal penalty under Section 78 to the appellants. As a result, while dismissing some appeals, the Tribunal partially allowed one appeal, reducing the penalty amount imposed under Section 78 to 25% of the original sum. This reduction was contingent upon the timely payment of service tax, interest, and the reduced penalty within 30 days from the date of communication of the order.

In summary, the judgment upheld the service tax demands and penalties, emphasizing the appellants' deliberate short payment. However, it granted the benefit of reduced penalty under Section 78 based on the Gujarat High Court's interpretation, providing relief to the appellants by reducing the penalty amount in one of the appeals.