2018 (9) TMI 178 - AT - Service Tax

Tribunal upholds tax liability for Man Power Agency Service. Penalties reviewed and reduced.

M/s Dinesh Kumar V Yadav Versus C.C.E. & S.T. -Ahmedabad-iii

The tribunal upheld the tax liability for Man Power Recruitment and Supply Agency Service during 2005-2006 but found the demand for the extended period ... Extended period of limitation - Man Power Recruitment and Supply Agency Service - period 2005 to 2006 - penalty u/s 76 and 78 - Held that:- In view of fact that initially taken registration and surrendered the same is more reason to establish the charge of suppression as the appellant was aware about the Service Tax law and despite that they have not complied with the payment of Service Tax - demand invoking extended period justified. Penalty u/s 76 & 78 - Held that:- It is a settled law that penalty under both the section should not be imposed simultaneously, accordingly, the penalty imposed under Section 76 is set aside - the penalty imposed under Section 78 which is equal to the service Tax amount, thr adjudicating authority in the order in original has not given option for 25% of penalty which is available under the proviso to Section 78 - penalty reduced to 25% under Section 78 subject to condition that the total demand of Service Tax, interest and 25% of penalty stand paid within one month from the date of receipt of this order. Appeal allowed in part. Issues involved:Taxability under Man Power Recruitment and Supply Agency Service during 2005-2006; Dispute regarding tax demand for the extended period; Waiver of penalties under Section 76, 77, and 78; Suppression of facts leading to extended period demand; Imposition of penalties under Section 76 and 78; Compliance with penalty options under Section 78.Analysis:The case involved the taxability under Man Power Recruitment and Supply Agency Service for the period 2005 to 2006. The appellant did not dispute the taxability of the service but contested the demand for the extended period, claiming no suppression of facts and seeking waivers of penalties under Section 76, 77, and 78. The Revenue representative reiterated the findings of the impugned order.Upon careful consideration, the tribunal found no dispute regarding the Service Tax liability on merit. However, the appellant argued that the demand was time-barred. The tribunal noted that the appellant had knowingly surrendered their registration without informing the department about the Service Tax activity, indicating a clear suppression of facts. The appellant's defense that they surrendered registration due to not intending to cross the exemption limit was rejected, as they should have been aware of their taxable value and complied with the registration requirements.Regarding the penalties imposed under Section 76 and 78, the tribunal observed that simultaneous imposition of penalties under both sections should not occur. Thus, the penalty under Section 76 was set aside. However, the penalty under Section 78, equal to the Service Tax amount, was reduced to 25% as the adjudicating authority had not provided the option for the lower penalty in the original order. Citing a Supreme Court judgment, the tribunal mandated the payment of the reduced penalty along with the total demand within one month.Consequently, the appeal was partly allowed, with the tribunal pronouncing the decision on 30/07/2018.