2017 (11) TMI 1442 - AT - Service Tax

Penalty u/s 78 of FA - Works contract service - composite contract - case of appellant is that they had disputes with the contractors regarding payments and they were in many arbitration proceedings, which created serious difficulty in discharging Service Tax liabilities in a timely manner - Held that - this is a fit case for invoking provisions of Section 80 for waiving aside the penalty - penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues involved: Appeal against penalty imposed under Section 78 of Finance Act, 1994 for Service Tax liability related to construction of commercial buildings.

Analysis:

1. Service Tax Liability and Penalty Imposition: The appellant, engaged in construction of commercial buildings, was disputing the penalty imposed under Section 78 of the Finance Act, 1994. The Service Tax liability for the period 2006-07 to 2010-11 was confirmed by the lower authority, leading to a demand of &8377;1,04,80,972 under Commercial or Industrial Construction Service. The appellant contended that the contracts involved both supply of goods and provision of services, which should have been taxed under works contract service post the Hon'ble Supreme Court decision in Commissioner of Central Excise, Kerala Vs. Larsen & Toubro Ltd. The appellant highlighted difficulties faced in discharging tax liabilities due to disputes with contractors and arbitration proceedings.

2. Arguments and Findings: The appellant's counsel argued for waiver of the penalty under Section 78, citing the composite nature of the contracts and the challenges faced in fulfilling tax obligations. The appellant's failure to readily provide necessary documents during investigation was raised by the ld. AR to question their compliance with legal provisions. The Tribunal noted that the contracts indeed involved both goods and services, making them liable to Service Tax only from 01.06.2007. As the tax liability was paid and not contested, the Tribunal focused solely on the plea for waiving the penalty under Section 78.

3. Tribunal's Decision: After considering the facts presented, the Tribunal invoked Section 80 to waive the penalty imposed under Section 78. The Tribunal refrained from making any observations on the merits of the case, given that the tax liability had been settled and not disputed. Consequently, the penalty under Section 78 was set aside, and the appeal was allowed in that regard.

In conclusion, the Tribunal's decision in this case centered on the plea for waiving the penalty imposed under Section 78 of the Finance Act, 1994, due to the unique circumstances surrounding the appellant's challenges in fulfilling their Service Tax liabilities related to construction contracts involving both goods and services.