2017 (9) TMI 1378 - AT - Service Tax

Penalty u/s 76 and 78 - payment of tax after issuance of the SCN - case of assessee is that they were under the bonafide belief of the applicability of the tax and therefore, no penal provisions should be invoked - Manpower Supply/Recruitment Agency Service - Held that - it is clearly evident that the Department was aware of the activities of the appellant. It is noted that the appellant rendered the service on the basis of the agreement. The Adjudicating Authority observed that the appellant paid the amount of service tax after issuance of SCN, but have not shown any proof of payment i.e T.R. 6 Challan and therefore, their intention to evade service tax by suppressing the facts, cannot be ruled out - penalty u/s 78 is not warranted. The appellant immediately paid tax after issuance of show-cause notice and for the same reasoning, penalty under Section 76 of the Finance Act, 1994, should be waived by invoking Section 80 of the Act, 1994. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether the appellant provided services falling under "Manpower Supply/Recruitment Agency Service" or "Maintenance and Repair Service" for the period of dispute.
2. Whether the appellant's belated payment of service tax after issuance of show-cause notice justifies the imposition of penalties under Sections 76 and 78 of the Finance Act, 1994.

Issue 1:
The appellant, engaged in providing maintenance and administrative services, was alleged to have provided manpower services to clients, which the authorities categorized as "Manpower Supply/Recruitment Agency Service." The appellant contended that they were paying service tax under the category of "Maintenance and Repair Service" based on their activities. The Adjudicating Authority upheld the demand of service tax, interest, and imposed penalties under Sections 76 and 78 of the Finance Act, 1994. The Commissioner (Appeals) affirmed the Order-in-Original. The appellant argued that they had informed the authorities about their activities through a letter dated 28.09.2005, asserting their belief in the non-applicability of the tax category. The Tribunal noted that the Department was aware of the appellant's activities as per the letter, and thus, there was no suppression of facts to evade tax. Consequently, the penalties were set aside, and the demand of tax with interest was upheld based on the agreement terms under which the services were rendered.

Issue 2:
The appellant's main contention was their payment of tax post issuance of the show-cause notice, claiming a bona fide belief in the tax applicability. The appellant argued that penalties under Sections 76 and 78 should not be imposed due to their belief and the immediate payment post-notice. The Tribunal analyzed the appellant's letter to the authorities, highlighting the awareness of the Department regarding the appellant's activities. It was observed that the appellant paid the tax after the notice but failed to provide proof of payment. The Tribunal concluded that there was no intent to evade tax, as evident from the letter, and thus, penalties under Section 78 were unwarranted. Additionally, the Tribunal considered the immediate payment post-notice as a reason to waive the penalty under Section 76, invoking Section 80 of the Finance Act, 1994. Therefore, the penalties were set aside, and the demand of tax with interest was upheld, disposing of the appeal in favor of the appellant.

This detailed analysis of the judgment provides insights into the issues addressed, the arguments presented, and the Tribunal's reasoning leading to the final decision.