2014 (7) TMI 199 - AT - Service Tax

Penalty u/s 76 & 78 - waiver of penalty u/s 80 - C&F Service - inclusion of reimbursements of expenses - Held that - Tribunal in the case of Sri Bhagavathy Traders Vs. Commissioner of Central Excise, Cochin reported in 2011 (8) TMI 430 - CESTAT, BANGALORE held that the service tax provider is to pay service tax on the gross amount. The prior to this decision there were divergent views on the issue. In these circumstances, we find merit in the contention of the appellant. In view of the penalties imposed under Section 76 & 78of the Finance Act are set aside - Decided in favour of assessee.

Summary

Issues:
- Appeal against demand of service tax and penalties under Section 76 & 78 of the Finance Act, 1994
- Interpretation of whether service provider is liable to pay service tax on the gross amount received
- Applicability of penalties under Section 80 of the Finance Act, 1994

Analysis:
The appellant filed an appeal against the order upholding the demand of service tax and penalties under Section 76 & 78 of the Finance Act, 1994. The dispute revolved around the period from September 1999 to March 2001, during which the appellant paid service tax on the commission received while providing C&F Service. The revenue contended that the appellant should pay service tax on the gross amount received. The appellant initially paid the service tax on the gross amount along with interest during 2003-2004 after the revenue pointed out the discrepancy. Subsequently, a show cause notice was issued for appropriation of the amount and imposition of penalties.

The appellant argued that the issue of whether the service provider is liable to pay service tax on the gross amount had been settled by a Larger Bench decision of the Tribunal in a previous case. The appellant referenced the case of Sri Bhagavathy Traders Vs. Commissioner of Central Excise, Cochin, where it was held that the service provider is required to pay service tax on the gross amount received. However, prior to this decision, there were divergent views on the matter, as seen in the case of Sri Sastha Agencies Pvt. Ltd. Vs. Asstt Commissioner. The appellant also invoked Section 80 of the Finance Act, claiming that they were not liable for any penalty.

On the other hand, the revenue argued that the agreement under which services were provided did not include a clause for reimbursement. They contended that there was clear suppression with the intent to evade payment of duty, leading to the imposition of penalties. The Tribunal, considering the conflicting views prior to the Larger Bench decision, found merit in the appellant's contention. Consequently, the penalties imposed under Section 76 & 78 of the Finance Act were set aside, and the appeal was allowed in favor of the appellant.

In conclusion, the judgment clarified the liability of the service provider to pay service tax on the gross amount received and addressed the applicability of penalties under Section 80 of the Finance Act, 1994. The decision highlighted the significance of precedents and the interpretation of statutory provisions in resolving disputes related to service tax liabilities and penalties.