2013 (1) TMI 350 - AT - Service Tax

Clearing and Forwarding Agent services - failure to pay service tax and education cess & failure to obtain registration as required under the Finance Act, 1994 - assessee paid the demand when questioned - Held that - As assessee after realizing their mistake had voluntarily paid the entire service tax along with interest in October, 2006 & also filed necessary ST 3 Returns for the period August, 2005 to March, 2006 in November, 2006 the Department was wrong in issuing a show-cause notice in the month of June, 2007 demanding the said service tax and also accepting that the said amount had already been paid by the appellant. As from the records, it is found that the mistake committed by the appellants is a bonafide one as is evident from the facts that they have duly reflected the entire amount of service charges received in their Audited Balance Sheet and also paid the service tax on realizing their mistake voluntarily along with interest before being pointed out by the Department there is no substance proved of suppression of facts leveled by the Department against the appellants. In these circumstances, this is a fit case for invoking Section 80 - in favour of assessee.

Summary

Issues:
Failure to pay service tax on services provided as a Clearing and Forwarding Agent, imposition of penalty under Sections 77 & 78 of the Finance Act, 1994, appeal against Order-in-Appeal No. 105/ST/Kol/2011, invocation of Section 80 of the Finance Act, 1994.

Analysis:

1. Failure to Pay Service Tax:
The appellants provided services as a Clearing and Forwarding Agent under an agreement with a company. They collected an amount but failed to pay service tax and education cess. The Department issued a show-cause notice demanding the unpaid amount and imposing penalties under the Finance Act, 1994. The Adjudicating Authority confirmed the demand and penalties. The appellants contended that they were not aware of the tax liability initially but voluntarily paid the due amount later. The Tribunal noted that the appellants had indeed failed to discharge the service tax initially but rectified the mistake by paying the entire amount along with interest before being pointed out by the Department.

2. Imposition of Penalties:
The penalties under Sections 77 & 78 of the Finance Act, 1994 were imposed on the appellants. The Commissioner (Appeals) partly allowed the appeal by reducing the penalty under Section 78. The Tribunal observed that there was no evidence of suppression of facts by the appellants or an intent to evade payment of service tax. The mistake was considered bona fide as the appellants had reflected the service charges in their audited balance sheet and paid the tax voluntarily upon realizing the error. The Tribunal found the penalties unjustified in this context and set aside the Order-in-Appeal.

3. Invocation of Section 80 of the Finance Act, 1994:
The appellants argued that Section 80 should be invoked in their case. They contended that the Department should not have issued a show-cause notice as the tax was paid voluntarily before being pointed out. The Tribunal agreed that this was a fit case for invoking Section 80, especially considering the appellants' proactive actions in rectifying the mistake. The ground for invoking Section 80 was specifically raised by the appellants before the authorities below, and the Tribunal upheld this argument in favor of the appellants.

4. Conclusion:
The Tribunal allowed the appeal filed by the appellants, setting aside the Order-in-Appeal and providing consequential relief as per the law. The judgment emphasized the appellants' voluntary payment of the tax amount along with interest, their compliance with filing necessary returns, and the absence of suppression of facts. The Tribunal considered the mistake made by the appellants as bona fide and found no merit in the penalties imposed, ultimately granting relief to the appellants in accordance with the provisions of the Finance Act, 1994.