2018 (7) TMI 440 - AT - Service Tax

Commercial or Industrial Construction Service - non-filing of returns - non-payment of Service Tax - allowance of cum-tax benefit - Held that - The benefit of calculation of Service Tax payable with the cum tax benefit is allowable to the Appellant - Once the cum tax benefit is extended, the total demand for Service Tax works out to ₹ 26.17 lakhs. It is seen that the Appellant has already deposited Service Tax amounting to ₹ 27.53 lakhs along with applicable interest even before the issuance of Show Cause Notice. Once the entire Service Tax dues are paid with interest, the Revenue need not have issued the Show Cause Notice. There is no justification for levy of penalty under the circumstances, which is set aside via 80 ibid. Appeal allowed in part.

Summary

Issues:
Restoration of appeal dismissed for default, Classification of services for Service Tax, Cum tax benefit calculation, Imposition of penalty under Section 76

Restoration of Appeal Dismissed for Default:
The appellant filed a Miscellaneous Application for restoration of the appeal that was dismissed for default due to the husband of the proprietor being hospitalized, preventing the prosecution of the appeal. The tribunal allowed the appeal to be restored after considering the circumstances and with the concurrence of both sides.

Classification of Services for Service Tax:
The dispute involved the appellant, engaged in rendering construction services, not filing ST-3 Returns or discharging Service Tax liabilities for services rendered. The Department issued a Show Cause Notice proposing a demand for Service Tax under Commercial or Industrial Construction Service. The appellant contended that the services should be classified under Works Contract Service, citing relevant case law. The tribunal considered the arguments and analyzed the nature of the activities carried out by the appellant for the disputed period.

Cum Tax Benefit Calculation:
The appellant had already paid a significant portion of the Service Tax demand along with interest before the Show Cause Notice was issued. The tribunal examined the calculation of Service Tax payable with the cum tax benefit, referring to a Supreme Court decision and provisions of the Finance Act, 1994. After extending the cum tax benefit, the total demand for Service Tax was adjusted, and penalties were set aside.

Imposition of Penalty under Section 76:
The Department justified the imposition of penalty under Section 76, arguing that the appellant had not paid the Service Tax or filed returns until the Department's investigation. However, the tribunal, after hearing both sides and perusing the records, found no justification for the levy of penalty under the circumstances and set it aside while upholding the demand for Service Tax after extending the cum tax benefit along with interest.

In conclusion, the impugned order was modified, and the appeal was partly allowed, with the tribunal pronouncing the decision in open court on 06.07.2018.