2014 (12) TMI 543 - AT - Service Tax

Tribunal upholds penalty under Finance Act, 1994. Failure to pay service tax despite collection deemed deliberate.

KETAN ENGINEERING SERVICES PVT. LTD. Versus COMMR. OF C. EX. & ST., SURAT

The tribunal upheld the imposition of the penalty under Section 78 of the Finance Act, 1994, and dismissed the appellant's appeal. The appellant's failure ... Penalty u/s 77 & 78 - Short payment of tax - Held that:- Entire service tax payable was recovered by the appellant from the service recipients. Appellant was a registered unit and was well aware of their liability to pay service tax to the Revenue. Even if there was any financial difficulty, appellant was required to file the periodical returns indicating therein the correct service tax liability. Had the appellant filed such returns showing correct duty liability, which he had already recovered, may be appellant’s bona fides could have been accepted. In the present case, appellant recovered the entire service tax from their customers and also did not file periodical prescribed returns with the Revenue. Non filing of returns and non-payment of service tax, in spite of collecting the same from the customers, clearly convey mala fide on the part of the appellant making them liable to penalty under Section 78 of the Finance Act, 1994. - Decided against assessee. Issues:1. Stay application and appeal filed by the appellant regarding Order-in-Original No. SUR-EXCUS-001-COM-044-13-14.2. Contestation of penalty under Section 78 of the Finance Act, 1994 by the appellant.3. Appellant's argument based on case laws for non-imposition of penalties.4. Revenue's argument of correct imposition of penalty under Section 78.5. Adjudication of the appeal by the tribunal based on the arguments presented.Analysis:1. The appellant filed a stay application and appeal against Order-in-Original No. SUR-EXCUS-001-COM-044-13-14, which confirmed a service tax amount and imposed penalties under Section 77 and Section 78 of the Finance Act, 1994. The appellant contested the penalty of &8377; 99,86,617/- under Section 78, arguing that the tax and interest were paid before the show cause notice was issued.2. The appellant, represented by a Chartered Accountant, relied on various case laws to support their argument for non-imposition of penalties under Section 78. The tribunal noted the case laws cited by the appellant, which included decisions from different tribunals on similar matters.3. The Revenue, represented by an AR, contended that the appellant had collected the service tax from customers but failed to file ST-3 returns during the prescribed period. The Revenue argued that as the appellant had recovered the service tax and was a registered unit, the penalty under Section 78 was justified.4. After hearing both sides and examining the case records, the tribunal focused on the contested penalty under Section 78. The tribunal noted that the appellant had collected the entire service tax from customers but did not file the required returns or pay the tax to the Revenue. This lack of compliance indicated mala fide intentions on the part of the appellant, leading to liability for penalty under Section 78.5. The tribunal rejected the appellant's appeal based on the observations that the appellant knowingly collected service tax but failed to fulfill their obligations towards the Revenue. The tribunal distinguished the cited case laws, stating they were not applicable to the present situation where the appellant deliberately withheld the service tax collected from customers. Consequently, the tribunal upheld the imposition of the penalty under Section 78 of the Finance Act, 1994, and dismissed the appellant's appeal.This detailed analysis outlines the key issues, arguments presented by both parties, and the tribunal's decision based on the facts and legal provisions involved in the case.