2017 (11) TMI 1332 - AT - Service Tax

Manpower Recruitment and Supply services - Short payment of service tax - case of Appellants is that they had failed to discharge service tax liability only because the customers failed to reimburse the service tax which resulted in heavy financial burden to the appellants - extended period of limitation - penalty - Held that - taking into consideration of the fact that the 4 appellant was to discharge the service tax on the reimbursable amount also namely salaries etc., we are of the considered view that the penalty imposed is unwarranted - penalties set aside. The matter s remitted to the adjudicating authority for decision afresh - appeal allowed by way of remand.

Issues:
1. Alleged short payment of service tax under Manpower Recruitment and Supply services.
2. Confirmation of demand, interest, and penalties by the original authority.
3. Appellant's plea regarding reluctance of companies to reimburse service tax.
4. Appeal for setting aside demand and penalties.
5. Discrepancy in profit and loss account leading to demand in one case.
6. Appellant's argument on financial burden due to customers' reluctance.
7. Legal validity of SCN invoking the extended period.
8. Arguments on limitation and intention to pay service tax.
9. Justification for penalties imposed under Sections 76 and 78.
10. Remand of one appeal for re-adjudication.

Analysis:
1. The appellants were issued Show Cause Notices (SCNs) for alleged short payment of service tax under Manpower Recruitment and Supply services. The original authority confirmed the demand, interest, and penalties. The appellant challenged this before the Tribunal, citing the period involved and the amounts demanded in each appeal.

2. The appellant's counsel argued that due to companies' reluctance to reimburse service tax, the appellants faced a significant financial burden. They claimed to have made efforts to recover the tax from customers, indicating no malafide intent to evade payment. The counsel requested setting aside the demand for the extended period and the penalties.

3. In one case, a demand was based on a discrepancy between the profit and loss account and ST-3 returns. The appellant explained that the service tax charged was accounted as income, leading to the difference. They sought a remand for reconsideration.

4. The Assistant Commissioner (AR) reiterated the findings, stating that the appellant collected but did not deposit the service tax, justifying the extended period SCN.

5. The Tribunal found the argument of financial burden due to customer reluctance untenable. Despite substantial collections, non-payment to the government was noted. However, considering the nature of the business and the obligation to pay tax on reimbursable amounts, penalties under Sections 76 and 78 were set aside in some appeals.

6. In the appeal requiring remand, the Tribunal directed a fresh adjudication, allowing the appellant to present evidence and have a personal hearing. The impugned order was set aside in this case for reevaluation.

This judgment highlights the complexities of service tax compliance, the burden on service providers, and the importance of proper documentation and payment. The Tribunal's decision reflects a balance between penalty imposition and the circumstances leading to non-payment, emphasizing the need for thorough reconsideration in specific cases.

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