2010 (12) TMI 240 - AT - Service Tax

Penalty under section 75(a), 76, 77, 78 - . The appellant entered into an agreement with M/s. BNIPL for marketing of the products manufactured by them - During the period in question, the appellant did not pay any service tax but got themselves subsequently registered with the service tax department in or around Aug. 2004 and started paying service tax - Revenue with a view that the appellant should have paid service tax prior to the registration also with effect from 1-7-2003 under the category of business auxiliary services started investigations at their end - If the assessee proves that there was a reasonable cause for the failure. Reasonable cause can be reasonably said to be a cause which prevents a man of average intelligence and ordinary prudence acting under the normal circumstances without negligence or inaction for want of bona fides - Held that there was bona fide on the part of the appellant to construe the services being provided by them as commission agent services, the same fact applied for holding the demand to be barred by limitations would act as a reasonable cause for setting aside the penalty in terms of provisions of section 80 - It is settled law that where the breach of law flowed from a bona fide belief that the assessee was not liable to act in the manner prescribed in the statute, penalties should not be imposed - Set aside the penalties imposed upon the appellant - The appeal is allowed by way of remand for quantification of demand within the period of limitation

Issues Involved:
1. Classification of services provided by the appellant.
2. Applicability of Notification No. 13/2003-ST dated 20-6-2003.
3. Invocation of the extended period of limitation.
4. Imposition of penalties under sections 75, 76, 77, and 78 of the Finance Act, 1994.

Issue-Wise Detailed Analysis:

1. Classification of Services Provided by the Appellant:
The primary dispute is whether the services provided by the appellant fall under "business auxiliary services" or "commission agent services." The Commissioner of Central Excise, Vadodara, held that the services provided by the appellant to the manufacturing unit were covered by "business auxiliary services" as defined in section 65(19) of the Finance Act, 1994. The appellant argued that the services rendered were those of a commission agent, which were exempt under Notification No. 13/2003-ST. The Tribunal examined the terms of the agreement between the appellant and BNIPL, noting that the services involved promotion, marketing, and advertisement of goods, which align with "business auxiliary services." The Tribunal concluded that the appellant's activities went beyond those of a commission agent and fell within the definition of "business auxiliary services," thus liable to service tax.

2. Applicability of Notification No. 13/2003-ST dated 20-6-2003:
The appellant contended that their services were exempt under Notification No. 13/2003-ST, which exempted services provided by commission agents. The Tribunal analyzed the definition of "commission agent" as provided in the notification and compared it with the services rendered by the appellant. It was observed that the appellant's services included extensive promotion and marketing activities, which are not typical of a commission agent's role. Therefore, the exemption under Notification No. 13/2003-ST was not applicable to the appellant's services.

3. Invocation of the Extended Period of Limitation:
The appellant argued that the show cause notice issued on 28-3-2005 for the period 1-7-2003 to 8-7-2004 was partially barred by limitation, as there was no allegation of willful misstatement or suppression of facts. The Tribunal agreed with the appellant, noting that the appellant had a bona fide belief that their services were exempt and had disclosed this belief during the initial investigation. The Tribunal held that the extended period of limitation could not be invoked in the absence of suppression or willful misstatement. Consequently, the demand for the period beyond one year was held to be time-barred, and the matter was remanded to the Commissioner for quantification of the demand within the normal period of limitation.

4. Imposition of Penalties under Sections 75, 76, 77, and 78 of the Finance Act, 1994:
The Tribunal considered the appellant's bona fide belief that their services were exempt and found that this constituted a reasonable cause for the failure to pay service tax. Under section 80 of the Finance Act, penalties should not be imposed if there is a reasonable cause for the failure. The Tribunal set aside the penalties imposed under sections 75, 76, 77, and 78, citing the appellant's bona fide belief and the absence of willful misstatement or suppression of facts.

Conclusion:
The appeal was allowed by way of remand for quantification of the demand within the period of limitation, and all penalties imposed on the appellant were set aside. The Tribunal's decision emphasized the importance of examining the specific terms of agreements and the nature of services provided to determine the correct classification and applicability of exemptions.

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