2018 (12) TMI 303 - AT - Service Tax

Penalty u/s 78 - failure to discharge tax - Construction services - construction of Power House near Hydro Electric Power Project - Held that - Undisputedly the appellant had constructed Power House near Hydro Electric Power Project but wrongly claimed that they have constructed dam. From the records, it is clear that they have failed to discharge Service Tax continuously for the period 2007-2008 to 2010-2011 even though they have rendered taxable services under the category of Construction Services - both the authorities below have rightly imposed and upheld penalty under section 78 of the Finance Act, 1994. The impugned order is modified to this extent and appeal is partly allowed to the said extent of allowing to discharge 25% of penalty subject to fulfilment of condition prescribed under Section 78 of Finance Act, 1994 - appeal allowed in part.

Summary

Issues: Appeal against Service Tax demand for construction services related to a dam; Dispute over construction of a Power House near the dam; Imposition of penalty under section 78 of the Finance Act, 1994.

Issue 1: Service Tax Demand for Construction Services

The appellant rendered construction services for a main contractor, claiming it to be in relation to the construction of a dam. However, they constructed a power house building near the dam, which was deemed not to be the construction of a dam. Consequently, a demand notice was issued for the recovery of Service Tax. The demand was confirmed with interest and penalty, leading to the appellant filing an appeal. The appellant argued that the demand was erroneously confirmed without extending abatement of the value of goods supplied from the gross taxable value of the service provided. The appellant's contention that the construction of the Power House near the dam should be considered as the construction of the dam itself was rejected. The Tribunal upheld the confirmation of the Service Tax demand as the appellant failed to discharge the Service Tax for the relevant period despite providing taxable construction services.

Issue 2: Imposition of Penalty under Section 78 of the Finance Act, 1994

The appellant contested the imposition of a penalty under section 78 of the Finance Act, 1994. The appellant argued that no penalty should be imposed on them and that they were not allowed to discharge 25% of the penalty as prescribed under the provision. The Revenue maintained that the penalty was rightly imposed as the appellant could not provide evidence of executing works contracts related to the dam during the relevant period. The Tribunal found that while the penalty under section 78 was justified, the appellant should be allowed to discharge 25% of the penalty subject to fulfilling the conditions laid down in the provision. Therefore, the impugned order was modified to allow the appellant to discharge 25% of the penalty under section 78 of the Finance Act, 1994.

In conclusion, the Tribunal upheld the confirmation of the Service Tax demand for construction services and the imposition of the penalty under section 78 of the Finance Act, 1994. However, the appellant was granted relief to discharge 25% of the penalty upon meeting the prescribed conditions.