2009 (9) TMI 672 - AT - Service Tax

Service tax liability and interest upheld, penalties set aside under Finance Act. Appellant's appeal partly allowed.

The Tribunal upheld the service tax liability and interest but set aside the penalties imposed under sections 76, 77, and 78 of the Finance Act, 1994. The ... Penalty- suppression- on investigation of the assessee’s record, the department found that the assessee had suppressed the fact of providing commissioning and installation services during relevant period and had neither filed the service tax return nor deposited the service tax amount. Subsequently, the assessee paid service tax along with interest. Thereafter, the department issued a show cause notice raising demand of service tax and to impose the penalties under section 76, 77, and 78. The Commissioner (Appeals) upheld the order. Held that- the assessee could have entertained bonafide belief that when it was supplying the equipment to the telecom department, the services rendered by it were not eligible to service tax. Uphold the order to the extent confirmation of demand of service tax liability and the interest, but set aside the penalty, thus the appeal is partly allowed. Issues:- Imposition of penalties under sections 76, 77, and 78 of the Finance Act, 1994.Analysis:1. The appellant was found to have suppressed providing commissioning & installation services, not filing ST-3 returns, and not paying service tax amounting to Rs. 6,43,420 for the period from July 2003 to September 2004. The appellant later paid the service tax along with interest. Penalties were imposed under sections 76, 77, and 78 of the Finance Act, 1994.2. The appellant appealed the adjudication order, challenging the penalties imposed. The learned Commissioner (Appeals) upheld the penalties. The appellant then brought the case to the Tribunal, contesting only the penalties, not the service tax liability.3. The appellant argued that penalties were unwarranted as they had paid the service tax before the show-cause notice was issued. They relied on the Division Bench's decision in Tidewater Shipping (P.) Ltd. v. CST [2008] 16 STT 414 (Bang. - CESTAT) and requested the penalties to be set aside based on the provisions of section 73(3) and 80 of the Finance Act, 1994.4. The JDR contended that the appellant had not discharged the service tax liability for the relevant period, justifying the penalties imposed by the lower authorities.5. The Tribunal found that the appellant had paid the entire service tax liability promptly upon being informed by authorities, even before the show-cause notice was issued. The Tribunal considered the bona fide belief of the appellant regarding the applicability of service tax to their services. Citing the Division Bench's decision in Tidewater Shipping (P.) Ltd., the Tribunal held that penalties were not justified when the tax was paid before the notice.6. Consequently, the Tribunal upheld the confirmation of the service tax liability and interest but set aside the penalties imposed under sections 76, 77, and 78 of the Finance Act, 1994. The appeal was partly allowed in favor of the appellant.