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2013 (12) TMI 966 - AT - Service TaxWaiver of pre deposit - Insurance premium paid by the lender - Reverse charge mechanism - Held that - While waiving the penalty on the applicants the learned Commissioner have invoked Section 80 of the Finance Act which provides waiver of penalty in case the assessee proves that there was reasonable cause for the said failure. There are several decisions of this tribunal e.g. in the case of Solitz corporation vs commissioner of Service Tax New Delhi (2008 (10) TMI 35 - CESTAT NEW DELHI) M.P. Water & Power Management Institute vs CCE Bhopal 2009 (1) TMI 17 - CESTAT NEW DELHI) and Indian Petrochemicals Corpn. Ltd. vs. CCE Vadodara (2008 (4) TMI 651 - CESTAT AHMEDABAD) wherein this Tribunal has held that when a penalty by invoking Section 80 of the Finance Act 1994 has been dropped the extended period of limitation is not invokable - Prima facie the applicant has made out a case for waiver of entire demand of dues adjudged in the impugned order. - stay granted.
Issues:
- Waiver of pre-deposit of service tax demand - Liability of service tax on insurance premium - Invocation of extended period of limitation - Application of Section 80 of the Finance Act for penalty waiver Waiver of Pre-deposit of Service Tax Demand: The applicants sought waiver of pre-deposit of service tax demand of Rs. 2,84,72,873/- along with interest. The service tax demand was related to the insurance premium paid by a lender to COFACE in France for purchasing an aircraft by the applicant on account of insurance guarantee. The Revenue contended that the service provided by COFACE to the lender falls under Banking and Financial Institution Services, making it liable for service tax under reverse charge mechanism. The applicants argued that they are not liable to pay service tax on the amount as the transaction occurred outside India during the purchase of the aircraft. The learned Counsel highlighted that the demand was beyond the period of limitation and that the applicants were facing financial difficulties, requesting a stay on the demands. Liability of Service Tax on Insurance Premium: The Revenue argued that the extended period of limitation was applicable as the applicants were aware of their liability to pay service tax on the insurance guarantee amount, which was not reflected in their ST-3 returns. The department discovered this during an investigation by DGCI. However, the applicants contended that the penalty was waived under Section 80 of the Finance Act, which requires proving a reasonable cause for the failure to pay, citing precedents where the Tribunal held that when a penalty is dropped under Section 80, the extended period of limitation is not applicable. Invocation of Extended Period of Limitation and Section 80 of the Finance Act: In considering the submissions and records, the Tribunal noted that the learned Commissioner had waived the penalty under Section 80 of the Finance Act due to a reasonable cause shown by the applicants. Referring to previous tribunal decisions, the Tribunal found that when a penalty is dropped under Section 80, the extended period of limitation is not invoked. Consequently, the Tribunal concluded that the applicants had made a case for the waiver of the entire demand of dues adjudged in the impugned order. Therefore, the requirement of pre-deposit of service tax along with interest was waived, and recovery was stayed during the appeal process. This detailed analysis of the judgment addresses the issues of waiver of pre-deposit of service tax demand, liability of service tax on the insurance premium, invocation of the extended period of limitation, and the application of Section 80 of the Finance Act for penalty waiver, providing a comprehensive overview of the legal considerations and decisions made by the Tribunal.
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