2011 (10) TMI 60 - AT - Service Tax

Import of services - Liability to pay penalty where service tax has been paid - period prior to 18-4-2006 - Held that - this is a case where extended period could not have been invoked for the demand and further in view of the fact that the appellant paid Service Tax and interest and not even contesting the same and also in view of the fact that the decision of Hon ble High Court of Mumbai in the case of Indian National Shipowners Association (2008 (12) TMI 41 - BOMBAY HIGH COURT), no penalty is imposable under any of the Sections of Finance Act, 1994.

Summary

Issues:
1. Liability of the assessee for Service Tax on commission paid to non-resident agents.
2. Imposition of penalty under Sections 76, 77, and 78 of the Finance Act, 1994.
3. Applicability of the extended period for invoking demand.
4. Interpretation of the liability of the recipient to pay Service Tax before a specific date.
5. Consideration of suppression or mis-declaration for penalty imposition.

Analysis:
1. The judgment dealt with the liability of the assessee for Service Tax on commission paid to non-resident agents. The original adjudicating authority confirmed the Service Tax demand and interest, but did not impose a penalty. However, the Commissioner revised the order and imposed a penalty under relevant sections of the Finance Act, 1994.

2. The counsel for the assessee requested to waive the pre-deposit requirement, arguing that the issue was solely about the liability of penalty, as the assessee was not contesting the Service Tax liability and interest. The tribunal accepted this request and proceeded to decide the appeal without pre-deposit.

3. The tribunal considered the period for which the Service Tax demand was made, noting that before a specific date, the liability of the recipient to pay Service Tax was in dispute. Referring to a judgment by the Hon'ble High Court of Mumbai, it was established that prior to a certain date, the recipient should not be held liable. The tribunal also highlighted the eligibility of the manufacturer for CENVAT Credit if the liability was discharged.

4. Considering the absence of suppression, fraud, or mis-declaration, the tribunal concluded that the extended period for demand invocation could not be applied. Moreover, since the appellant had paid the Service Tax and interest without contesting it, and in light of the High Court judgment, no penalty was deemed imposable under the Finance Act, 1994.

5. In the absence of grounds indicating suppression or mis-declaration, and given the payment of Service Tax and interest by the appellant, the tribunal allowed the Stay Petition and the appeal, ruling that no penalty should be imposed.