2017 (8) TMI 470 - AT - Service Tax

Non-payment of service tax - it was the case of Revenue that the appellant had collected the service tax and not paid to the Department - Held that - in the case of IWI Crogenic Vaporization System India Vs. CCE Cus. and ST, Vadodara-II IWI Crogenic Vaporization System India , this Tribunal has held that if the service tax has been recovered from the recipient and not paid the same to the Department, it tantamounts to intention to evade duty - in the case of Triton Communication Pvt. Ltd. 2005 (7) TMI 595 - CESTAT, MUMBAI , this Tribunal has held that financial crisis is not a reasonable cause for non-payment of service tax especially when the same is collected from the service recipient - appeal dismissed - decided against appellant.

Summary

Issues:
1. Appellant's non-payment of service tax for the period from 01.01.2010 to 31.03.2011.
2. Appellant's contention of reasonable cause for not paying service tax in time.
3. Appellant's argument for benefit under Section 80 of the Finance Act.
4. Reduction of penalty amount by the Commissioner (Appeals).
5. Comparison of decisions cited by both parties.

Detailed Analysis:
1. The appeal was filed against the order passed by the Commissioner (Appeals) confirming the demand of service tax amounting to ?18,57,069/- for the period from 01.01.2010 to 31.03.2011. The appellant, registered under specific categories, had collected service tax but failed to remit it to the Department under the category of 'Construction Services in respect of Commercial Buildings & Civil Structures.' The lower adjudicating authority imposed penalties under relevant sections of the Finance Act, 1994, and demanded late fees which the appellant contested.

2. The appellant argued that there was no suppression of facts as they had filed the ST-3 Return on time, showing total taxable services and tax paid. They claimed a reasonable cause for non-payment, citing financial difficulties due to delayed payments from clients. The appellant emphasized that service tax with interest was paid before the show-cause notice, seeking the benefit under Section 80 of the Finance Act for the delay in payment.

3. The appellant's counsel contended that the impugned order did not consider all facts and circumstances, asserting that the appellant had collected but not fully remitted the service tax. The appellant's defense was based on the argument that the financial crisis was a valid reason for the delay, which the Department opposed, citing various legal precedents supporting their stance.

4. The Commissioner (Appeals) partially allowed the appeal by reducing the penalty amount from ?18,57,069/- to ?8,04,615/-. However, the appellant sought further leniency based on decisions favoring a more forgiving approach towards penalties under Section 80, arguing for a reduced penalty due to reasonable grounds for non-payment.

5. The Tribunal, after considering submissions from both parties and reviewing the case records, upheld the Commissioner (Appeals)' decision. The Tribunal found that the appellant's failure to remit collected service tax amounted to an intention to evade duty, emphasizing that financial difficulties were not a justifiable reason for non-payment when the tax had been collected. The Tribunal differentiated the cited legal precedents, concluding that they were not applicable to the current scenario where service tax collection was involved. Consequently, the Tribunal dismissed the appeal, affirming the impugned order.