2018 (4) TMI 1095 - AT - Service Tax

Penalty - Construction of Residential Complex Services - present appeal is from 16.06.2005 to 30.06.2006 - Held that - The act of immediate compliance of law by the appellant by paying the service tax when the lapse was pointed out to them is enough to prove that there is no intention to evade or avoid the payment of service tax on the part of the appellant - penalties set aside by extending benefit of section 80 as also by observing that there was no intention to evade payment of duty - penalty set aside - appeal allowed.

Summary

Issues:
Imposition of penalty under section 78 of the Finance Act, 1994 for taxability of "Construction of Residential Complex Services."

Analysis:
The judgment dealt with the challenge to the imposition of penalty under section 78 of the Finance Act, 1994, specifically related to the taxability of "Construction of Residential Complex Services." The appellant argued that the services should be categorized under "Works Contract Services" for the period prior to 01.06.2007. However, they did not contest the tax liability as they had already collected tax from customers and paid it to the department for the period from 16.06.2005 to 30.06.2006.

The Commissioner (Appeals) observed that the immediate compliance of law by the appellant in paying the service tax upon being notified of the lapse indicated no intention to evade or avoid payment of service tax. Consequently, the Commissioner (Appeals) set aside the penalties imposed under section 76 and 77 of the Finance Act, 1994, citing the benefit of section 80 and the absence of intent to evade payment.

The appellate authority, however, did not set aside the penalty imposed under section 78, which was surprising given the findings related to the lack of intent to evade payment of duty. The Revenue did not challenge the Commissioner (Appeals)'s decision regarding penalties under section 76 and 77. Therefore, it was noted that the penalty under section 78 should also have been set aside in line with the reasoning provided.

In conclusion, the judgment confirmed the demand for tax and interest, which was not contested. However, the penalty imposed under section 78 was set aside, and the appeal was allowed to that extent. The decision was dictated and pronounced in open court by the members of the tribunal.