2012 (9) TMI 238 - AT - Service Tax

Non payment of service tax on commission paid to the agent located outside India - invoking reverse charge mechanism - Held that - As the appellant has paid service tax after issuance of the SCN the assessee s are liable to get the refund as the appellants are exporter, if they have paid the service tax they will get service tax paid by them by way of refund creating a situation of revenue-neutrality - invoking the provisions of Section 80 and waive penalty under Section 76 against the appellant is thus warranted - in favour of assessee.

Summary

Issues:
- Confirmation of demand of service tax with penalties
- Applicability of penalty under Section 76 and Section 77 of the Finance Act, 1994
- Invocation of Section 80 for waiver of penalty

Confirmation of demand of service tax with penalties:
The Appellate Tribunal CESTAT, CHENNAI dealt with a case where the Commissioner (Appeals) confirmed a demand of service tax of Rs.4,31,414/- along with interest and penalties under Section 76 and Section 77 of the Finance Act, 1994. The appellant, an exporter, availed services from an agent located outside India during the export of goods. The appellant failed to pay service tax for the period July 08 to Dec 08, leading to the issuance of a Show Cause Notice (SCN) by the Range Officer. Subsequently, the appellant paid the service tax along with interest. The adjudicating authority confirmed the demand, interest, and imposed penalties under Section 76 and Section 77. The appellant challenged the penalties imposed.

Applicability of penalty under Section 76 and Section 77 of the Finance Act, 1994:
The appellant contended that due to business constraints and the need for revenue-neutrality, they could not deposit the service tax on time. It was argued that as exporters, they would file a refund claim to recover the service tax paid. The appellant sought the benefit of Section 80 of the Finance Act, 1994, for the waiver of penalties. The learned SDR opposed this argument, stating that the appellants had a history of paying service tax post-SCN issuance and thus were not eligible for the benefit of Section 80. The Tribunal considered both sides' submissions and noted that penalties had been waived in similar cases where service tax was paid post-SCN issuance, and the amount paid was available as a refund to the appellants.

Invocation of Section 80 for waiver of penalty:
After considering the facts and precedents, the Tribunal invoked Section 80 of the Finance Act, 1994, to waive the penalty under Section 76 against the appellant. The Tribunal highlighted that the service tax paid by the appellant was available as a refund, leading to the decision to waive the penalty. The appeal was disposed of with the waiver of the penalty under Section 76, providing relief to the appellant based on the circumstances and application of the relevant legal provisions.

Conclusion:
The judgment by the Appellate Tribunal CESTAT, CHENNAI addressed the confirmation of service tax demand with penalties, the applicability of penalties under Section 76 and Section 77 of the Finance Act, 1994, and the invocation of Section 80 for the waiver of penalty. The decision to waive the penalty under Section 76 was based on the appellant's payment of service tax post-SCN issuance and the availability of the paid amount as a refund, aligning with past precedents and legal provisions.