2017 (3) TMI 617 - AT - Service Tax

Imposition of penalty u/s 78 - delay in payment of tax - it is the submission of the appellant that the delay in payment of service tax is due to acute financial problem. There is no intention to evade the service tax, full amount with interest for delayed payment has been paid before the issue of show cause notice - Held that - It is clear that the amount realised from the clients which included the tax, has been used for internal purposes by the appellant disregarding the statutory tax liability to the Government. The bonafideness of the appellant cannot be accepted in such an act. Financial hardship cannot be pleaded against penal action when the tax collected is not remitted to the Government and used for other expenses - penalty upheld - appeal dismissed - decided against appellant.

Summary

Issues:
- Contesting service tax liability
- Delay in payment of service tax
- Financial hardship as a defense
- Imposition of penalty under Section 78
- Applicability of Section 73 (3) and (4)
- Reduction of penalty to 25%
- Mentioning of penalty payment option in the order

Analysis:
- The appeal challenges an order confirming service tax liability of ?3,54,37,986 along with interest and imposing a penalty under Section 78 due to delayed payment of service tax. The appellant admitted non-payment of tax despite receiving consideration from clients, attributing the delay to financial difficulties. The appellant argued against the penalty, citing the amount was reflected in their balance sheet and paid with interest before the show cause notice, invoking Section 73 (3) for closure of proceedings.

- The appellant's contention of financial hardship as a reason for delayed payment was refuted by the Department, emphasizing the intentional delay in tax payment despite collecting it from clients. The Department argued that Section 73 (4) excludes cases of willful misstatement or suppression from the scope of Section 73 (3), justifying the penalty imposition under Section 78. The Tribunal noted the appellant's misuse of tax collected for internal purposes and dismissed the claim of bonafide delay.

- The Tribunal reviewed various case laws cited by the appellant, clarifying their inapplicability to the current case where the appellant failed to discharge tax liability for an extended period post-receipt from clients. The Tribunal highlighted the appellant's misrepresentation to tax authorities and lack of statutory compliance, aligning with the lower Authority's penalty imposition decision based on precedents like Indsur Global Ltd. and IWI Crogenic Vaporization Systems India cases.

- The appellant's request for a penalty reduction to 25% was denied as they failed to pay it within 30 days of the order, as required by law. The Tribunal referenced the Delhi High Court's stance on explicitly mentioning penalty payment options in orders, concluding that non-compliance does not invalidate the order. Ultimately, the Tribunal found no merit in the appeal and dismissed it, upholding the original order's decision on service tax liability, interest, and penalty under Section 78.