2019 (1) TMI 1174 - AT - Service Tax

Penalty - Short payment of Service tax - foreign remittances made to the Foreign Service providers for receiving various services as that of advertising & marketing, business auxiliary service, commission to travel agent service etc. - entire alleged duty alongwith the interest has already been paid that too prior to the issuance of the SCN - applicability of Section 73 (3) of the Finance Act - scope of SCN - Held that - The Department has made emphasis on sub-section (4) thereof, but the perusal of show cause notice makes it clear that Section 73 to sub-section (4) has not been invoked. It has now been settled law that the Department is not allowed to go beyond the show cause notice, otherwise also section 73 sub-section (4) includes the cases where the short payment or non-payment by the reason of fraud, collusion, willful misstatement or suppression of facts - Mere non-payment or short payment for a particular period even till the time audit is not sufficient to prove the grave allegations as are contained in sub-section (4). It is rather the onus of Department to come forward to give some evidence of positive act on part of the appellant proving the appellants intend to evade the tax duty. Sub-section (4) of Section 73 is held not applicable to the present case - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Short payment of tax by the appellant for foreign remittances made to foreign service providers.
- Show cause notice served proposing recovery of short paid tax, interest, and penalty under Section 76 & 78 of the Finance Act, 1994.
- Appeal preferred before Commissioner (Appeals) against Order-in-Original confirming the proposal.
- Order-in-Appeal rejecting the appeal, leading to the appellant approaching the Tribunal.
- Applicability of Section 73(3) of the Finance Act in the case for setting aside the penalty imposed.

Analysis:
The appellant, a service provider for various services like cab operators and health clubs, was found to have short paid tax amounting to ?13,25,286 for foreign remittances to foreign service providers. A show cause notice was issued proposing recovery of the short paid tax, interest, and penalty under relevant sections of the Finance Act, 1994. The appellant contended that the alleged duty and interest had been paid before the notice, with the short payment based on a bonafide belief regarding liability. The main objection was against the penalty imposed, citing Section 73(3) of the Finance Act and a previous decision for support.

The Department argued that the short payment not being rectified until pointed out amounted to suppression of facts, invoking Section 73(4) instead of 73(3). The key issue revolved around the applicability of Section 73(3) in the case to set aside the penalty. The Tribunal analyzed the provisions of Section 73(3) and (4) in detail, emphasizing the mandatory nature of Section 73(3) when the duty is paid before notice issuance. It was noted that the entire duty and interest had been paid before the show cause notice, as acknowledged in the notice itself, warranting the benefit of Section 73(3) for the appellant.

The Tribunal rejected the Department's reliance on Section 73(4) as it was not invoked in the show cause notice, and mere non-payment or short payment was insufficient to prove fraud or suppression of facts. Citing a relevant High Court decision, it highlighted that the Department must provide evidence of intentional evasion by the appellant. Ultimately, the Tribunal set aside the penalty imposed, allowing the appeal and endorsing the benefit of Section 73(3) to the appellant. The order imposing the penalty was deemed incorrect, and the appeal was allowed in favor of the appellant.