2012 (10) TMI 407 - AT - Service Tax

Setting aside of Penalty imposed - Held that - Penalty imposed is set aside - No malafide intention and suppression of Facts by appellant - As decided in case of DCM Textiles Versus Commissioner of Central Excise 2012 35 STT 88 (NEWDELHI-CESTAT) For imposition of Penalty the intention to evade the duty must be proved. Merely not obtaining service tax registration or non-payment of tax, cannot be a ground of evasion of duty - penalty set aside.

Summary

Issues:
Service Tax liability for technical/testing/inspection services from foreign collaborators, imposition of penalty, applicability of Section 66 A, mala fide intention, suppression, interpretation of law by Hon'ble High Court, invocation of section 80 of the Finance Act.

Analysis:
The Appellate Tribunal, after hearing both sides, confirmed a Service Tax liability of Rs. 2,61,309 against the appellant for the period July 2003 to August 2006 due to services received from foreign collaborators. An identical penalty was imposed on the appellant, engaged in manufacturing disc brake pads and brake shoes.

The appellant, through their advocate, acknowledged the service tax payment but challenged the penalty imposition. Citing the Hon'ble High Court's decision in the Indian National Ship owners Association case, the advocate argued that services from foreign entities were not taxable until 18.4.06, and even the confirmed demand until that date was deemed unlawful. The appellant contended that their non-payment was not deliberate, as they had paid excise duty and the service tax amount was available as credit. They emphasized the absence of suppression or misstatement with mala fide intent, referencing a Tribunal decision in the DCM Textiles case.

The Revenue's representative, Shri Bharat Bhushan, appeared and the Tribunal concurred with the appellant's advocate. Following the law as per the Bombay High Court's ruling, the Tribunal noted that services from abroad were not taxable until 18.4.06. The Tribunal found no justifiable reason for the appellant's failure to pay a small service tax amount when they were already paying substantial excise duty, especially since the payment could be utilized as Cenvat credit. Consequently, the Tribunal invoked section 80 of the Finance Act, setting aside the penalties while confirming the service tax demand.

In conclusion, the Tribunal disposed of the appeal by confirming the service tax liability but overturning the penalties imposed on the appellant.