2012 (7) TMI 196 - AT - Service Tax

Penalty - Invocability of extended period - Appellant company is engaged in the manufacture and supply of Wind Energy Turbines within and outside India - appellant voluntarily paid the Service Tax and interest thereon on 06.02.2007. Proceedings were initiated by way of issuance of Show Cause Notice on 24.04.2009 Held that - Invocability of extended period in cases where the receiver of Service Tax is eligible to avail CENVAT Credit, is no longer res-integra and in such cases, it has been held that no penalty can be imposed - when the situation is revenue neutral and the appellant manufacturer is entitled to CENVAT Credit, it cannot be said that there was an intention to evade duty and extended period can be invoked - penalty imposed on the appellant cannot be sustained In favor of assessee

Summary

Issues:
1. Liability to pay Service Tax on fees paid to non-resident service providers.
2. Invocability of extended period for demanding Service Tax.
3. Imposition of penalties in cases where CENVAT Credit is available.

Analysis:

Issue 1: Liability to pay Service Tax on fees paid to non-resident service providers
The appellant company, engaged in Wind Energy Turbines manufacturing, paid fees in foreign currency to non-resident service providers related to an External Commercial Borrowing facility. The appellant voluntarily paid the Service Tax and interest upon investigation initiation. The Show Cause Notice was issued for Service Tax payment and processing fees paid before the enactment of Section 66A. The demands pre-18.04.2006 were dropped, leaving the current dispute unresolved.

Issue 2: Invocability of extended period for demanding Service Tax
During the Stay Petition hearing, the appellant had already paid the Service Tax and interest, challenging the imposition of penalties under an extended period. The appellant argued that penalties cannot be imposed when the receiver is eligible for CENVAT Credit, citing precedent decisions. The Tribunal agreed that the issue was no longer res-integra, waiving the pre-deposit requirement and deciding the matter without delay.

Issue 3: Imposition of penalties in cases where CENVAT Credit is available
The appellant's timely payment of Service Tax and interest before the Show Cause Notice was issued was highlighted, referencing a Karnataka High Court judgment. It was noted that since the amount due was available as credit to the appellant, penalties under Section 78 of the Finance Act could not be sustained. Precedent decisions, including the Essar Steel Ltd case, emphasized that penalties cannot be upheld when the situation is revenue-neutral and CENVAT Credit is applicable. Therefore, the penalty imposed on the appellant was set aside based on these legal principles.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the penalties imposed and disposing of the Stay Petition and appeal accordingly, aligning with the established legal precedents and interpretations related to Service Tax liabilities, extended periods, and penalties under the Finance Act.