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2012 (10) TMI 68 - AT - Service TaxConsultancy Engineering Service - service tax demand, interest thereon & penalty - period in question 19.04.2006 to 31.03.2007 - Held that - Admittedly, the Appellant did not contest payment of Service Tax nor it is their case that there is no delay in payment of Service Tax. Therefore, the Appellant are required to pay interest on delay in payment of Service Tax in terms of Section 75, irrespective of the fact that the Applicant have paid the Service Tax before issue of show cause notice. As prior to 18.04.2006, i.e. before insertion of Section 66 of the Finance Act, 1994, the service recipient was not required to pay the Service Tax and the service recipient became liable to pay Service Tax after insertion of Section 66 w.e.f. 18.04.2006. Thus the learned Commissioner has not imposed any penalty under Section 76 or Sections 77 and the Department has not challenged the non-imposition of penalty under Sections 76 and 77. In these circumstances, there was a reasonable cause and therefore, the penalty is not imposable as per the provisions of Section 80.
Issues involved:
1. Liability to pay Service Tax on services received from a foreign service provider. 2. Imposition of interest and penalty under various provisions of the Finance Act, 1994. 3. Applicability of Section 66A of the Finance Act. 4. Payment of interest on delayed payment of Service Tax. 5. Imposition of penalty under Section 76, 77, and 78 of the Finance Act. 6. Interpretation of Section 80 of the Finance Act regarding penalty imposition. Issue 1: Liability to pay Service Tax on services received from a foreign service provider: The Appellant received services from a foreign service provider for their expansion plan without an office in India. The dispute arose regarding the non-payment of Service Tax on these services categorized as Consultancy Engineering Service under Section 65(31) of the Finance Act, 1994. The Appellant contended that they had already paid the Service Tax for the relevant period before the show cause notice was issued, thus challenging the demand for interest and penalties. Issue 2: Imposition of interest and penalty under various provisions of the Finance Act, 1994: The Commissioner confirmed the demand for Service Tax, Education Cess, and proposed penalties. The Appellant argued against the imposition of penalties under Sections 76, 77, and 78 of the Act, citing payment of Service Tax and seeking protection under Section 80 due to a classification dispute. The Appellant also disputed the demand for interest, claiming it to be unwarranted. Issue 3: Applicability of Section 66A of the Finance Act: Section 66A was inserted in the Finance Act, making a service recipient liable to pay Service Tax for services received from a foreign entity if certain conditions were met. The Appellant had paid the Service Tax for the relevant period, and the dispute primarily revolved around the interest and penalty aspects. Issue 4: Payment of interest on delayed payment of Service Tax: The Appellant acknowledged the payment of Service Tax but contested the imposition of interest under Section 75 of the Finance Act for delayed payment. The Tribunal noted that interest was applicable regardless of the timing of the Service Tax payment, as per the provisions of Section 75. Issue 5: Imposition of penalty under Section 76, 77, and 78 of the Finance Act: The Tribunal found that no penalty was imposable under Sections 76, 77, or the first proviso to Section 78 if there was a reasonable cause for the failure to pay Service Tax. Given the circumstances and the absence of penalty imposition under Sections 76 and 77, the Tribunal concluded that there was a reasonable cause, hence setting aside the penalty imposed by the Commissioner. Issue 6: Interpretation of Section 80 of the Finance Act regarding penalty imposition: The Appellant invoked Section 80 of the Finance Act, arguing against penalty imposition due to a classification dispute that necessitated legal advice. The Tribunal agreed that since there was no penalty under Sections 76 and 77, and a reasonable cause existed, the penalty under Section 78 was not sustainable, leading to the allowance of the Appeal on the penalty aspect. In conclusion, the Tribunal set aside the penalty imposed by the Commissioner, directed a reassessment of interest payable under Section 75, and disposed of the Appeal accordingly, emphasizing the importance of compliance with the provisions of the Finance Act, 1994.
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