2013 (2) TMI 6 - AT - Service Tax

Penalty u/s 76, 77 and 78 Assessee is providing services of collection of bill amount, customer care services etc. on behalf of M/s TTSL for which getting commission Applied for Service Tax Reg. No. But not paid Service Tax Non-payment was detected by officers and determined service Tax liability Assessee discharged the liability along with interest Subsequently department issued a show cause notice confirming the tax liability and interest and also imposing penalty u/s 76, 77 and 78 of FA. 1994 Held that - Since non-payment was due to their ignorance of law, this is a fit case for for invoking Section 80 of the Finance Act, 1994. Though the appellant have not disputed their service tax liability, it would not be correct to impose penalty under Sections 76 and 78, as this is possible that the total turnover of their taxable services in respect of customer care may be within the exemption limit Penalty imposed was set aside In favour of the assessee.

Summary

Issues:
1. Imposition of penalty under Sections 76, 77, and 78 of the Finance Act, 1994 on the appellant for non-payment of service tax.
2. Whether the appellant's non-payment of service tax was due to ignorance of the law and financial difficulties.
3. Applicability of Business Auxiliary Services under Section 65(19) of the Finance Act, 1994 to the services provided by the appellant.

Analysis:
1. The appellant, a service provider, had a dispute regarding the imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994 for not paying service tax. The appellant had applied for Service Tax Registration in May 2007 but failed to pay the service tax until it was pointed out during an inspection in September 2008. The appellant paid the service tax liability along with interest before the issuance of the show cause notice. The dispute centered on the imposition of penalties, challenging the Commissioner (Appeals) decision upholding the penalties.

2. The appellant argued that they promptly paid the service tax liability upon detection, attributing the non-payment to lack of awareness of the law and financial difficulties. The appellant, being a small-scale service provider, claimed no mala fide intention and pleaded leniency due to their circumstances. The Departmental Representative defended the penalties, emphasizing the appellant's obligation as a Business Auxiliary Service provider under Section 65(19) of the Finance Act, 1994.

3. The Tribunal considered the appellant's activities under the Franchisee Agreement with a telecom company, providing post-paid collection services and customer care, for which they received a commission. While the services fell under Business Auxiliary Services, the Tribunal noted a lack of clarity on how the bill collection services fit within the definition. The Tribunal found it doubtful if the entire commission was for services covered under Business Auxiliary Services. Given the ambiguity and the appellant's ignorance, the Tribunal invoked Section 80 of the Finance Act, 1994, setting aside the penalties imposed under Sections 76 and 78. The Tribunal allowed the appeal, emphasizing the appellant's lack of awareness and financial constraints as mitigating factors.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the penalties imposed under Sections 76 and 78 of the Finance Act, 1994, considering the appellant's ignorance and financial difficulties as justifications for non-payment of service tax.