2018 (11) TMI 573 - AT - Service Tax

Penalty u/s 78 - Presence of malafide intent or not - reverse charge mechanism - Held that - Since the service tax amount was not deposited by the appellant within the stipulated time and such amount was deposited as a consequence of the objection raised by the audit wing, it is manifest that provisions of Section 78 of the Act, are attracted for imposition of penalty on the appellant. However, in case, when the assessee maintains specified records, the proviso appended to Section 78 of the Act, mandates that imposition of penalties should be restricted to 50% of the determined amount of service tax - the quantum of penalty is thus reduced to 50%. Appeal allowed in part.

Summary

Issues Involved:
Appeal against order confirming service tax liability and penalties under Sections 77 and 78 of the Finance Act, 1994.

Analysis:

Issue 1: Service Tax Liability
The appellant was found liable to pay service tax under reverse charge mechanism for various taxable services received but failed to pay during the disputed period. The audit wing of the service tax department identified the irregularities, leading to the confirmation of service tax demand of ?15,23,858 along with interest. The Commissioner (Appeals) upheld this demand in the impugned order.

Issue 2: Imposition of Penalties
The adjudication order imposed penalties under Sections 77 and 78 of the Finance Act, 1994. The appellant contested the imposition of an equal amount of penalty under Section 78, arguing that the provision cannot be invoked without fulfilling specific conditions like fraud, collusion, or willful misstatement to evade payment of service tax.

Analysis of Judgment:
The Tribunal noted that the appellant did not dispute the non-payment of service tax for the taxable services received. However, the Tribunal found that the penalties imposed should be in accordance with the provisions of Section 78 of the Act. The audit report formed the basis for objections raised by the department, but the Tribunal observed that penalties should be restricted to 50% of the determined amount of service tax when the assessee maintains specified records, as mandated by the proviso to Section 78.

Conclusion:
The Tribunal set aside the equal amount of penalty imposed under Section 78 and reduced it to 50% of the confirmed service tax amount. The impugned order was upheld in confirming the service tax demand, interest, and penalty under Section 77. The appeal was partly allowed, emphasizing the importance of complying with statutory provisions in determining penalties for non-payment of service tax.