2016 (3) TMI 807 - AT - Service Tax

Waiver of penalty - suppression of fact - Manpower Recruitment and Supply Agency Service during the period of October 2005 to March 2008 - Held that - appellant themselves did not gave full details of liability of their service tax and the said details were collected by the Revenue from the customers of the appellant-assessee by the Central Excise Department. Also the appellant took the registration under Service Tax on 05.02.2008 but did not come forward to give the details of services provided by them to their customer recipients, where they had liability of payment of service tax to the Department. This shows that the appellant-assessee suppressed the facts from the Revenue with an intention to evade payment of service tax and when when there are malafides proved on the part of the appellant-assessee, they would not be entitled to take the benefit of provisions of Section 73(3)(4) ibid. Imposition of penalty under Section 77 & 78 of the Finance Act, 1994 - Order-in-original imposed penalty of 200& of the liability of Service tax - Held that - the penalty of 200% of the Service Tax due, which was the maximum fixed under the then law, can be imposed under Section 78 ibid. Therefore, the penalty of 200% of the tax due is not rightly justified and is reduced to 100% of the liability of payment of Service tax. There is no justifiable reason to interfere with in respect of imposition of penalty under Section 77 ibid. - Decided partly in favour of appellant-assessee

Issues:
1. Alleged non-payment of service tax by the appellant for the period of October 2005 to March 2008.
2. Validity of the show-cause notice issued to the appellant.
3. Applicability of Section 73(3) of the Finance Act.
4. Imposition of penalties under Sections 76, 77, and 78 of the Finance Act.

Issue 1: Alleged non-payment of service tax

The appellant, a Manpower Recruitment and Supply Agency Service provider, was alleged to have supplied manpower and received charges without registering for service tax. The show-cause notice demanded payment of service tax of &8377; 6,03,859 for the period from October 2005 to March 2008. The Additional Commissioner confirmed the tax liability along with penalties. The appellant argued that they paid most of the tax and interest, but the notice was issued after a significant delay. The Tribunal found that the appellant did not fully disclose their services, leading to the delayed payment only after inquiries by the Department.

Issue 2: Validity of show-cause notice

The appellant contended that the notice was issued contrary to established guidelines. They relied on previous judgments and High Court decisions to support their argument that no notice should have been issued. However, the Revenue argued that the appellant failed to disclose their services despite applying for registration, indicating fraudulent intent. The Tribunal found that the appellant's failure to disclose their services showed an intention to evade tax, justifying the issuance of the notice.

Issue 3: Applicability of Section 73(3) of the Finance Act

The appellant claimed innocence and argued that they were not aware of the tax liability. They cited provisions of Section 73(3) and relevant case laws to support their position. However, the Tribunal observed that the appellant's suppression of facts and failure to provide details to the Revenue demonstrated an intent to evade tax. Consequently, the appellant was deemed ineligible to claim the benefit under Section 73(3) due to their deliberate non-disclosure.

Issue 4: Imposition of penalties

The appellant challenged the imposition of penalties under Sections 76, 77, and 78 of the Finance Act. The Tribunal noted that the penalty under Section 78 was initially set at 200% of the tax liability, but the current law capped it at 100%. Considering the circumstances, the Tribunal reduced the penalty to 100% of the tax due, amounting to &8377; 6,03,859. The penalty under Section 77 was upheld as justified. The Tribunal concluded by adjusting the penalties in accordance with the current legal provisions.

In conclusion, the Tribunal upheld the tax liability of the appellant for non-payment of service tax, justified the issuance of the show-cause notice, denied the appellant the benefit of Section 73(3), and adjusted the penalties imposed under the Finance Act to align with current legal provisions.

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