2018 (1) TMI 213 - AT - Service Tax

Construction of Residential Complex Service - taxability w.e.f 01.07.2010 - penalty - Held that - the issue of levy was matter of dispute before the Hon ble High Court and was under challenge and in such case it cannot be said that the Appellant had intention to evade tax or they had any malafide intention. The demand amount alongwith interest stand paid before issue of SCN - there is no reason to impose penalty u/s 77 and 78 of the FA, 1994 upon the Appellant - demand of tax with interest upheld - penalty set aside - appeal allowed in part.

Summary

Issues: Interpretation of levy of service tax, imposition of penalty under section 77 and 78 of the Finance Act

Interpretation of Levy of Service Tax:
The case involved the Appellant providing "Construction of Residential Complex Service" and being issued a show cause notice for not discharging service tax liability from July 2010 to June 2012. The Appellant had paid the demanded service tax along with interest before the notice. The Appellant argued that the levy of service tax was continuously disputed, citing cases such as G.S. Promoters Vs. UOI and challenges by Maharashtra Chambers of Housing Society. The Appellant contended that no penalty should be imposed due to the payment before the notice, referencing cases like C.C.E & ST., LTU, Bangalore Vs. Adecco Flexoline Workforce Solutions Ltd and Tribunal's Final Order in the case of M/s Serene Developers Vs. Commissioner of Central Excise, Pune - I. The Tribunal noted that the levy of service tax was made applicable in the Finance Act 2010, and despite challenges in various High Courts, the levy was upheld. The Appellant had sought registration and deposited the service tax before the show cause notice was issued. The Tribunal held that the Appellant's lack of awareness of the levy, coupled with the payment of tax and interest before the notice, indicated no intention to evade tax or malafide intent. Relying on precedents, the Tribunal set aside the penalties imposed under section 77 and 78, maintaining the demand for service tax and interest.

Imposition of Penalty under Section 77 and 78 of the Finance Act:
The Appellant argued against the imposition of penalties under section 77 and 78 of the Finance Act, citing lack of intention to evade tax or malafide intent due to the payment of service tax and interest before the show cause notice. The Tribunal agreed with the Appellant's stance, considering the ongoing dispute regarding the levy of service tax and the Appellant's proactive steps in seeking registration and making payments. Relying on the principles established in previous cases like Adecco Flexione and Serene Developers, the Tribunal waived off the penalties while maintaining the demand for service tax and interest. The Tribunal's decision was based on the Appellant's lack of awareness of the levy, the absence of malafide intentions, and the timely payment of the tax and interest before the issuance of the show cause notice.

This judgment highlights the importance of considering the circumstances surrounding the payment of taxes, the awareness of legal provisions, and the absence of malafide intent in determining the imposition of penalties under the Finance Act. The Tribunal's decision underscores the significance of compliance, proactive measures, and legal precedents in resolving disputes related to service tax liabilities.