2017 (10) TMI 900 - AT - Service Tax

Stevedoring/Port Services - only contention put forward by appellant is that their main contractor M/s. VSPL is liable to pay the service tax - Held that - When the appellant has received charges from the clients for the rendering of stevedoring services, the appellant is liable to discharge service tax, unless it is established that the counterpart / main contractor has discharged service tax on the very same services. Since no evidence is put forth in this regard, there are no ground to interfere with the demand raised in the impugned order. However, taking into consideration that the appellant was under bonafide belief that the main contractor would be liable to discharge the service tax and also taking note of the fact that the said services were outsourced as brought out from the contention put forward by the appellant, the penalties imposed both u/s 76 and 78 would be harsh as well as unsustainable - rest of demand upheld - appeal allowed in part.

Summary

Issues: Liability to pay service tax on port services, imposition of penalties under sections 76 and 78.

Liability to pay service tax on port services:
The case involved the appellant, providing various services including port services, who did not discharge service tax despite it being levied from July 2001. The appellant paid a partial amount before a show cause notice was issued. The original authority confirmed the demand along with interest and penalties. The appellant argued that they outsourced the job to another service provider and thus were not liable for service tax. However, the Tribunal noted that the appellant had obtained a port license and received payments for the services. The absence of evidence showing the main contractor's liability to pay service tax led the Tribunal to uphold the demand. Despite the appellant's belief that the main contractor should pay, the Tribunal found them liable due to lack of evidence, but set aside the penalty under section 76 considering the appellant's belief and the outsourcing of services.

Imposition of penalties under sections 76 and 78:
The appellant contended that they did not discharge the service tax as they believed the main contractor was responsible. The Tribunal acknowledged the appellant's argument but emphasized that since no evidence was presented to establish the main contractor's liability, the appellant was still liable to pay the service tax. However, considering the appellant's genuine belief and the outsourcing of services, the Tribunal deemed the penalties imposed under sections 76 and 78 as harsh and unsustainable. Consequently, the Tribunal set aside the penalty under section 76 while upholding the rest of the demand. The appeal was partly allowed on these grounds.

Overall, the Tribunal upheld the demand for service tax on port services due to lack of evidence showing the main contractor's liability, but set aside the penalty under section 76 considering the appellant's belief and the outsourcing of services.