Customs, Excise and Services Tax Appellate Tribunal (CESTAT): Anil Choudhary (Judicial Member) allowed an appeal which was filed involving the question of as to whether penalty under Section 78 of Finance Act, 1994 was rightly imposed.
Appellant is rendering service of accommodation in hotel and restaurant service. Pursuant to audit, it appeared to revenue that appellant had not discharged service tax on three invoices of legal services/fee of advocate, totalling Rs. 41,000/-, attracting service tax under RCM Rs. 5540/-. A show cause notice was accordingly issued proposing to demand tax and also proposing to impose penalty. The appellant admitting the liability paid the service tax of Rs. 5540/- on 10-07-2017 however on 30-11-2017 the said amount was confirmed, and appropriated and further equal amount of penalty was imposed under Section 78 of the Finance Act, 1994, observing that had the audit not taken notice, the tax liability would have escaped. The Commissioner (Appeals) had confirmed the penalty.
Counsel for the appellant urged that there was no deliberate non-compliance in depositing the tax under the RCM. That only due to over site or clerical mistake, the tax could not be deposited. Further, as the appellant was paying output tax and legal services being input service, they were entitled to Cenvat credit and thus, the situation was revenue neutral.
The Tribunal after perusing records found that there was no deliberate non-compliance and further the situation is wholly revenue neutral. Thus, there is no incentive for the appellant to evade payment of service tax under the RCM. The appeal was allowed setting aside the penalty under Section 78.
[Umed Bhawan Palace v. Commr. CGST, 2022 SCC OnLine CESTAT 523, decided on 22-07-2022]
Advocates who appeared in this case :
Shri Anurag Soan, Advocate, for the Appellant;
Shri Ishwar Charan, Authorised Representative, Advocate, for the Respondent.
*Suchita Shukla, Editorial Assistant has reported this brief.
