2017 (11) TMI 835 - AT - Service Tax

Delayed payment of service tax - demand of interest and penalty - Held that - the appellant though has not collected the service tax from their main contractor M/s. Wind World India Ltd. but still they have paid the same - the appellants have paid the interest amount of ₹ 15,56,161/- on 05.10.2015 against the demand of ₹ 15,18,104/- and the said amount has been appropriated also in the impugned order. Penalty - Held that - in the show-cause notice, the demand of service tax is not under Section 73(1) of the Finance Act and therefore the imposition of penalty on the appellant is unwarranted - penalty set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Confirmation of demand of interest and penalty by Commissioner
- Applicability of penalty under Section 76 of the Act
- Payment of interest by the appellant
- Imposition of penalty without issuance of show-cause notice for service tax

Confirmation of demand of interest and penalty by Commissioner:
The appeal was against an order confirming a demand of interest and imposing a penalty by the Commissioner. The appellant, a construction service provider, had paid service tax but failed to pay interest for delayed payments. The Commissioner confirmed the demand and penalty, leading to the appeal.

Applicability of penalty under Section 76 of the Act:
The appellant argued that the penalty was unjust as no show-cause notice was issued for service tax payment, only for interest. They contended that the penalty was imposed erroneously without allegations of fraud or suppression of facts, citing a tribunal decision to support their case.

Payment of interest by the appellant:
The appellant claimed to have paid the interest amount in excess of the demand and asserted eligibility for a refund. They highlighted the financial strain caused by paying service tax from their own funds due to delayed payments from their contractor.

Imposition of penalty without issuance of show-cause notice for service tax:
The Tribunal found that the show-cause notice was solely for interest payment, not service tax under Section 73(1) of the Finance Act. Therefore, the imposition of penalty was deemed unwarranted, following a precedent where penalty imposition required specific conditions not met in this case.

In the final judgment, the Tribunal set aside the impugned order, ruling in favor of the appellant. The decision was based on the lack of a show-cause notice for service tax, the appellant's payment of interest exceeding the demand, and the erroneous imposition of penalty by the Commissioner. The judgment emphasized the importance of following due process and specific legal provisions when imposing penalties in tax matters.