2012 (7) TMI 508 - AT - Service Tax

Penalty - stockbroking services - defaulted in making payment of service tax liability Held that - Service tax liability was duly reflected in ST-3 Return filed with the Department before being pointed out by the Department - It also indicates his bona fideness in discharging service tax liability - Service tax liability was not discharged on being detected by the Department, but paid voluntarily pursuant to the disclosure already made in the ST-3 Returns - case covered under section 80 of the Finance Act and the penalty on the appellant is not warranted - Appeal is allowed

Summary

Issues:
- Appeal against penalty imposed under Section 76 of the Finance Act for non-payment of service tax liability.
- Invocation of Section 80 of the Finance Act for waiver of penalty.

Analysis:
1. Appeal against Penalty under Section 76 of the Finance Act:
The appellant, a stockbroker providing stockbroking services, defaulted in paying service tax liability for the period April 2007 to September 2007. The total amount involved was Rs. 3,66,739 as service tax, Rs. 7335 as education cess, and Rs. 2,719 as secondary higher education cess. Despite disclosing the liability in ST-3 Returns, the payment was not made on time due to the main broker's default in payment following a stock market crash. The appellant paid the entire service tax liability in September 2008 along with interest. The adjudicating authority imposed a penalty of Rs. 99,654 under Section 76 of the Finance Act, which was challenged in appeal before the Commissioner (Appeals) and subsequently in the present appeal.

2. Invocation of Section 80 of the Finance Act for Waiver of Penalty:
The appellate tribunal considered the appellant's explanation for the delay in payment and found it to be bona fide due to circumstances beyond the appellant's control. It was noted that the service tax liability was reflected in the returns filed before being pointed out by the Department. The appellant voluntarily paid the entire amount of service tax liability along with interest, indicating good faith. The tribunal observed that the appellant's case warranted the invocation of Section 80 of the Finance Act, as sufficient cause was shown for the delay in payment. Consequently, the tribunal set aside the lower authorities' orders and directed the waiver of the penalty under Section 80 of the Finance Act, allowing the appeal.

This judgment highlights the importance of demonstrating bona fide reasons for non-payment of tax liabilities and the applicability of provisions like Section 80 of the Finance Act for waiving penalties in cases where sufficient cause is shown.