2011 (2) TMI 527 - AT - Service Tax

Demand - Circular No. 87/05/2006-ST dated 6.11.2006 - The original authority confirmed the demand of service tax and appropriated the amount already paid by them and imposed penalties under Sections 77 & 78 - circular only clarifies the legal position as it was existing and, therefore, the question of applying the circular only from date of circular does not arise - It is noticed that the Commissioner (Appeals) has upheld the appropriation of entire amount of Service Tax relating to the period Dec. 2004 to August, 2007 as the same was not contested before the original authority and before the Commissioner (Appeals) - there was doubt relating to the taxability of the service as noted by the Board circular date 6.11.2006, the non-payment of tax by the respondents during the relevant period cannot be held to be intentional - Decided in favour of the assessee

Summary

Issues:
- Appeal against order of Commissioner (Appeals) dated 29.9.2010 confirming demand of Service Tax, interest, and penalties.
- Interpretation of Board Circular No. 87/05/2006-ST dated 6.11.2006.
- Imposition of penalties under Sections 77 & 78 of the Finance Act, 1994.

Analysis:
1. The appeal was made against the order of the Commissioner (Appeals) confirming the demand of Service Tax, interest, and penalties. The original authority had confirmed the demand of Service Tax of Rs.1,52,212/- for the period Dec. 2004 to August, 2007, along with interest and penalties under Sections 77 & 78 of the Finance Act, 1994. The Commissioner (Appeals) upheld the appropriation of Service Tax and interest but set aside the penalties imposed by the original authority.

2. The key issue revolved around the interpretation of Board Circular No. 87/05/2006-ST dated 6.11.2006. The department argued that the circular clarified the existing legal position and should apply retrospectively. However, the Commissioner (Appeals) noted doubts regarding the taxability of certain activities of authorized motor vehicle dealers and service stations as per the circular. The department sought restoration of the penalties based on non-payment of tax despite the circular.

3. The Tribunal analyzed the situation and found that the respondents, acting as an authorized dealer, received commission for services rendered. The department issued a show-cause notice proposing demand of Service Tax, which was confirmed by the original authority. The Commissioner (Appeals) considered the doubts raised by the Board Circular and set aside the penalties imposed by the original authority.

4. The Tribunal agreed with the Commissioner (Appeals) that the doubts regarding taxability of the services, as noted in the Board Circular, justified the non-payment of tax by the respondents during the relevant period. The Tribunal emphasized that the doubt entertained by the respondents regarding their tax liability was bona fide, given the recognized uncertainty in the field. Therefore, the order setting aside the penalties under Sections 77 & 78 was deemed justified and the department's appeal for restoration of penalties was rejected.

In conclusion, the Tribunal upheld the decision of the Commissioner (Appeals) to set aside the penalties imposed under Sections 77 & 78, considering the doubts raised by the Board Circular regarding the taxability of the services provided by the respondents.