2010 (8) TMI 190 - AT - Service Tax

Interest and penalty - Appellants have rendered business auxiliary services and collected the service charges - they have not taken service tax registration for providing business auxiliary services and they have not filed returns indicating the service charges received as commission agents - they paid the entire duty amount before issuance of SCN - Held that - claim of the appellants that they were under bona fide belief that they were not liable to pay service tax is clearly contradicted by their own act of raising bills for the service tax which apparently stands paid to them - submission of the learned advocate that in the absence of specific offer in the order of the original authority and in the order of the Commissioner (Appeals) regarding option to pay concessional penalty in terms of first proviso to Section 11AC the same should be extended is to be accepted in the light of decision of the Hon ble High Court of Delhi in the case of K.P. Pouches cited supra - penalties sustained by Commissioner (Appeals) under Section 77 and Section 78 are upheld - appeal is disposed of

Summary

Issues:
1. Liability to pay service tax as a commission agent under business auxiliary services.
2. Imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994.
3. Claim of bona fide belief by the appellants regarding service tax liability.
4. Availability of concessional penalty of 25% under the first proviso to Section 11AC.
5. Dispute over the penalty sustained by the Commissioner (Appeals).

Detailed Analysis:
1. The appeal addressed the liability of the appellants, a manufacturer of MS ingots and runner and riser, for rendering business auxiliary services and collecting service charges without proper registration for service tax. The appellants raised bills for service tax but failed to register for providing business auxiliary services. The original authority confirmed a demand for service tax, interest, and penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The Commissioner (Appeals) set aside the penalty under Section 76, leading to the current appeal against the penalties imposed under Sections 77 and 78.

2. The appellant's advocate argued that there was confusion regarding the scope of services of a commission agent and their liability for service tax under business auxiliary services. The advocate cited previous decisions to support the appellant's claim of a bona fide belief that no service tax was payable. Additionally, the advocate contended that the appellants were not given the option to pay a concessional penalty of 25%, as provided under the first proviso to Section 11AC, which should have been allowed based on a High Court decision.

3. The respondent, represented by the SDR, countered the appellant's claim of a bona fide belief, highlighting that the appellants had raised bills for service tax and collected the amount, indicating awareness of their liability. The SDR argued that the penalties under Sections 77 and 78 were rightly sustained by the Commissioner (Appeals) and that the appellants were not eligible for the 25% penalty concession due to non-compliance within the stipulated time.

4. The judgment acknowledged that the appellants were liable to pay service tax as business auxiliary services providers despite their claim of a bona fide belief. The appellants' actions, such as raising bills for service tax and collecting the amount, contradicted their claimed belief. However, the judgment accepted the advocate's submission regarding the availability of the concessional penalty, as the appellants were not given the option to pay the reduced penalty amount in the original order or the order of the Commissioner (Appeals).

5. Consequently, the appeal was disposed of by upholding the penalties sustained by the Commissioner (Appeals) under Sections 77 and 78. The appellants were granted the option to pay a reduced sum within 30 days; failure to comply would result in the original penalty amount being enforced. The judgment balanced the imposition of penalties with the acknowledgment of procedural fairness in offering the appellants the opportunity to pay a reduced penalty amount as per the legal provisions.