2011 (4) TMI 586 - HC - Service Tax

Demand - erection and commissioning service - assessee has accepted the order of the Tribunal and paid the service tax and interest thereon on the commissioning and erection of services - assessee has paid the excise duty on the value of the product notwithstanding the services rendered - it is in these circumstances, it cannot be said that there is any willful attempt to evade the payment of tax on the part of the assessee - It is in the nature of transitional period and the benefit of doubt that existed in the mind of the assessee is to be given to him - It constitutes a reasonable cause for not paying the service tax in view of Section 80. The Tribunal was justified in interfering with the levy of penalty and in setting aside the same - Decided in favor of the assessee

Summary

Issues:
- Appeal against order passed by Tribunal upholding duty and interest but setting aside penalty
- Contention on penalty under Section 76 being automatic
- Dispute over liability to pay penalty after paying service tax and interest
- Substantial question of law regarding setting aside penalty under Section 76

Analysis:

The case involved an appeal by the revenue against a Tribunal order that upheld the duty and interest imposition but set aside the penalty. The assessee, a manufacturer and supplier of centralized lubrication systems, claimed exemption for erection and commissioning services in their ST-3 return. The authorities held the assessee liable for service tax on these services, leading to the imposition of tax, interest, and penalty. The Tribunal upheld the service tax levy but overturned the penalty. The revenue contended that penalty under Section 76 is automatic, while the assessee argued they paid excise duty on the services and accepted the Tribunal's decision by paying the service tax and interest, thus no penalty should apply.

The key question raised was whether the Tribunal was correct in setting aside the penalty under Section 76 despite upholding the service tax and interest demand. The assessee maintained they paid excise duty on the services before they became subject to service tax, hence no double taxation occurred. The Tribunal found no willful tax evasion, considering the transitional period and the assessee's compliance post the service tax imposition. Citing Section 80, the Tribunal deemed the assessee had a reasonable cause for not paying the service tax, justifying the penalty waiver. The Court agreed, ruling in favor of the assessee and against the revenue, finding no fault in the Tribunal's decision. Therefore, the penalty was rightfully set aside based on reasonable grounds and the benefit of doubt granted to the assessee during the transitional tax period.