2017 (1) TMI 1187 - AT - Service Tax

Security Agency Service - default in tax payment - the appellant had defaulted the tax liability inspite of having collected the service tax amount from their clients, whether the leniency can be accorded? - Held that - the appellant had collected from their client not only the charges for the services but also service tax liability thereon. Even so, they have not remitted the said liability to the exchequer - the appellant certainly has not come out with clean hands to this forum and hence the appeal for extension of CUM duty benefit is not merited and hence not acceded to - demand of tax and interest upheld. With reference to penalty under Section 78, the same is modified to 25% of the service tax demanded provided, the appellant says up the entire duty liability with interest along with reduced penalty within a month of this order - As penalty under Section 78 is confirmed, there shall be no further penalty under Section 76 of finance Act, 1994. Appeal disposed off - decided partly in favor of assessee.

Summary

Issues: Alleged evasion of service tax by the appellant in relation to Security Agency Service provided during a specific period.

Analysis:
The appellant was accused of evading service tax in connection with Security Agency Service provided between October 2000 to September 2005. The appellant's counsel stated that they had already paid a significant portion of the confirmed tax amount before the issuance of the show cause notice and subsequently paid more after the Order-in-Original. The appellant sought CUM duty benefit on the tax liability and requested a waiver of penalty. On the contrary, the department argued that the appellant had failed to remit the tax liability despite collecting the service tax amount from their clients, thus opposing leniency. After hearing both sides and examining the facts, it was acknowledged that the appellant had collected both service charges and service tax liability from their clients but had not transferred the said liability to the exchequer. The adjudicating authority's findings were considered reasonable and correct. Therefore, the plea for CUM duty benefit was rejected due to the appellant not coming forth with clean hands. However, regarding the penalty amount, it was noted that the adjudicating authority had imposed a penalty equal to the tax liability under Section 78 of the Finance Act. Yet, the authority had not granted the benefit of a reduced penalty percentage available in the second proviso to Section 78, which was deemed an aberration. Consequently, the tribunal made the following orders:

1. No interference in the demand of duty amounting to the tax liability on security agency services provided by the appellant during the relevant period.
2. The appellant, having paid a substantial amount, was required to settle the remaining balance within one month.
3. Interest at the appropriate rate was also to be paid.
4. The imposition of penalty under Section 76 was upheld.
5. The penalty under Section 78 was modified to 25% of the service tax demanded, provided the appellant cleared the entire duty liability with interest and the reduced penalty within a month of the order.
6. As the penalty under Section 78 was confirmed, no further penalty under Section 76 of the Finance Act, 1994, was to be imposed. The appeal was disposed of accordingly.