2022 (9) TMI 1063 - AT - Service Tax

Tribunal upholds service tax demand under Repair & Maintenance, sets aside penalty, allows cum-tax benefit

The Tribunal upheld the service tax demand under the Repair and Maintenance category post-amendment, rejecting the appellant's argument based on the ... Levy of Service Tax - Repair and Maintenance Service - repairs of nozzles - period involved is 2006-07 and 2008-09 - suppression of facts or not - invocation of extended period of limitation - HELD THAT:- It is found from 16.05.2005 there was a clear liability of service tax on Repair and Maintenance, ignorance of law cannot be of any excuse for discharging the statutory liability of the taxes. The appellant have not registered themselves nor filed any return during the relevant period therefore, there was clear suppression of facts on the part of the appellant. Cum-tax value - HELD THAT:- The appellant is agreed upon that where any gross amount is charged from the service recipient, the same shall be treated as value inclusive of all including service tax. Levy of simultaneous penalties under Section 76 and 78 - HELD THAT:- The issue is no longer res-integra in view of the judgment in the case of M/S RAVAL TRADING COMPANY VERSUS COMMISSIONER OF SERVICE TAX [2016 (2) TMI 172 - GUJARAT HIGH COURT] that simultaneous penalties under Section 76 and 78 cannot be imposed, the appellant is not liable for penalty under Section 76. Appeal allowed in part. Issues Involved:Demand of service tax under Repair and Maintenance category for repairs of nozzles, applicability of tax liability before and after a specific date, imposition of penalties under Section 76 and 78, time-barred demand, cum-tax benefit eligibility.Analysis:1. Demand of Service Tax under Repair and Maintenance Category:The case involved the issue of the demand of service tax under the Repair and Maintenance category for repairs of nozzles. The appellant argued that there was no tax liability on such services before a specific date due to the absence of a maintenance contract. However, the law was subsequently amended, making the service taxable regardless of the presence of a contract. The Tribunal noted that service tax was clearly payable after the specified date, and the appellant's failure to pay was not justified by ignorance of the law. The appellant's non-registration and failure to file returns during the relevant period indicated suppression of facts, leading to a clear liability for service tax.2. Imposition of Penalties under Section 76 and 78:The appellant contended that simultaneous penalties under Section 76 and 78 should not be imposed. Citing a relevant judgment, the appellant argued against the imposition of penalties. The Tribunal agreed that simultaneous penalties under both sections cannot be imposed. Consequently, the penalty under Section 76 was set aside based on the findings and discussions presented.3. Time-Barred Demand and Cum-Tax Benefit Eligibility:Regarding the limitation on the demand, the appellant claimed that the change in the law, which was unknown to them, justified the non-payment of service tax. The Tribunal disagreed, emphasizing that ignorance of the law cannot excuse the statutory tax liability. However, the Tribunal acknowledged the appellant's entitlement to cum-tax benefit based on the gross amount charged from the service recipient. Citing a specific case, the Tribunal supported the appellant's claim for cum-tax benefit. As a result, the Tribunal partially allowed the appeal, sustaining the service tax demand subject to re-quantification with the benefit of cum-tax value and setting aside the penalty under Section 76.In conclusion, the Tribunal's order on the issues involved clarified the liability for service tax post-amendment, the inapplicability of simultaneous penalties under Section 76 and 78, and the eligibility for cum-tax benefit. The decision highlighted the importance of complying with tax laws and the consequences of non-compliance despite changes in legislation.