2011 (7) TMI 951 - AT - Service Tax

Demand - Business Auxiliary Services - Period of limitation - Consequent to introduction of Service Tax on Information Technology Services with effect from 16-5-2008, the applicants are paying the Service Tax under the said head in addition to paying VAT / Sales Tax as applicable - in view of the Commissioner s finding regarding absence of guilty mind for warranting imposition of penalty under Section 78, invocation of extended period of limitation is not justifiable - Decided in favor of the assessee

Summary

Issues Involved:
Waiver of demand of Service Tax, interest, and penalties under Section 76 and 77 based on extended period of limitation.

Analysis:
The case involved the applicant seeking a waiver of a substantial demand of Service Tax amounting to Rs. 11,06,64,228/-, along with interest and penalties imposed under Section 76 and 77. The Service Tax was demanded under the category of 'Business Auxiliary Services' through three different show cause notices covering various periods. The first notice dated 20-10-2008 encompassed the period from 1-6-2002 to 31-7-2008, with a duty demand of approximately Rs. 7.8 crores.

The advocate for the applicant argued that the demands based on the extended period of limitation were not sustainable, citing a specific finding of the Commissioner that the penalty under Section 78 was not applicable. It was highlighted that prior to 16-5-2008, the applicant had imported software products from their parent company in the USA, cleared them as goods attracting sales tax, and sold them in India and other countries. Following the introduction of Service Tax on 'Information Technology Services' from 16-5-2008, the applicant started paying Service Tax under this head in addition to VAT/Sales Tax. It was noted that the applicant had already paid around Rs. 30 lakhs as Service Tax within the normal period of limitation.

The SDR reiterated the Commissioner's findings and reasoning, leading the Tribunal to carefully consider the submissions from both sides. The Tribunal, prima facie, agreed with the advocate's argument that since there was no guilty mind established for imposing penalties under Section 78, the invocation of the extended period of limitation was not justifiable. Additionally, it was acknowledged that the applicant had duly paid the Service Tax applicable under 'Information Technology services' within the normal limitation period.

Consequently, the Tribunal held that the applicant had presented a valid case for the waiver of the remaining dues as per the impugned order. As a result, the Tribunal granted the waiver of pre-deposit of the dues and stayed the recovery until the appeal was disposed of. The judgment was pronounced and dictated in an open court setting.