2010 (6) TMI 130 - AT - Service Tax

Appeal allowed due to lack of evidence; Penalties under Finance Act set aside

M/s. Shapoorji Pallonji & Company Ltd. Versus The Commissioner of Service Tax, Bangalore

The appeal was allowed as the Member (Technical) found no evidence of the appellant's intent to evade tax or suppress facts. The Chartered Accountant's ... Penalty- the appellants are registered with the Service Tax Department for providing Construction Service. The appellants collected project management fees from clients of their construction service. From September 2004, such charges collected were included in the taxable value of construction service rendered by them and they paid the tax due after availing abatement of 67% applicable to construction service. Commissioner imposed penalty on the ground that they suppress the facts. Held that- in the light of the various decisions, section 80 of the act can be invoked the appellants were not guilty of fraud, suppression of fact or willful mis-statement with intent to evade payment of duty. The appeal is allowed. Issues:Appeal against imposition of penalties under Sections 76 and 78 of the Finance Act, 1994.Analysis:1. The appellant, a construction service provider, collected project management fees during a specific period and paid the due tax after availing abatement. The original authority accepted the payment and dropped the proposal to penalize under Sections 76 and 78.2. However, the Commissioner revised the order and imposed penalties for delay in tax payment and for contravention of statutory provisions, alleging suppression of facts.3. The appeal argued that the original authority had waived penalties and cited case laws to support the claim that revisionary authorities cannot impose penalties when the original authority had not.4. During the hearing, the appellant's representative referenced relevant judgments and argued against the imposition of penalties in revision proceedings.5. The JDR contended that the appellant willfully evaded tax and suppressed facts, citing legal precedents and a circular by the Central Board of Excise & Customs.6. The Member (Technical) analyzed the case records and found no evidence of suppression of facts or intent to evade tax by the appellant. The show cause notice was not required as per the Act, rendering the revision proceedings unsustainable.7. The Chartered Accountant's arguments based on legal provisions were upheld, leading to the setting aside of the imposed penalties.8. The judgment referenced High Court cases supporting the view that penalties cannot be imposed in the absence of fraud or willful misstatement, as per Section 78 of the Act.9. Additional cases cited by the appellant aligned with the above judgments, reinforcing the decision to allow the appeal.10. The High Court's stance on penalties for suppression of facts under Section 80 of the Act was considered, emphasizing the lack of sympathy for guilty parties.11. The Tribunal's decision on imposable penalties under Sections 76 & 78 was discussed, along with the CBEC Circular clarifying penalty imposition conditions.12. The judgment concluded by allowing the appeal, highlighting the absence of evidence supporting penalties for fraud or suppression by the appellant.