2015 (1) TMI 725 - AT - Service Tax

Exemption on commission paid to foreign agent - wilful mis-statement or suppression of facts - Penalty under Sections 76, 77 and 78 - Held that - It is seen that the appellants were issued two Show Cause Notices, one dated 15.04.209 covering the period 01.04.2008 to 31.01.2009 and the other dated 02.09.2009 covering the period 01.01.2005 to 31.01.2009. The original adjudicating authority confirmed the demands raised in both the Show Cause Notices although as is evident from the period, covered by them, the demand of ₹ 33,560/- raised under Show Cause Notice dated 15.04.2009 was included in the demand of ₹ 5,37,464/- raised in the Show Cause Notice dated 02.09.2009. It is seen that the impugned Order-in-Appeal corrected this mistake and deducted the amount of ₹ 33,560/- from the demand relating to Show Cause Notice dated 02.09.2009. Further, when penalties under Section 76, 77 and 78 were not imposed in respect of the demand pertaining to the Show Cause Notice dated 02.09.2009 (which invoked the extended period under proviso to Section 73 ibid) on the ground that the issue was interpretational, it is difficult to fathom as to how the demand for the extended period can be sustained. As regards the contention of the appellants that whatever service tax is demanded would have been available as credit or they would have been eligible for refund under Notification No. 41/2007-ST, even if not held fully acceptable, does lend support to the appellants contentions that there was no reason for them to indulge in mis-statement or suppression of the facts. - Partial stay granted.

Summary

Issues:
1. Imposition of service tax demand on manufacturer-exporters for commission paid to foreign agents.
2. Applicability of penalty under Sections 76, 77, and 78 of Finance Act, 1994.
3. Availability of service tax exemption or Cenvat credit on commission paid to foreign agents.
4. Allegations of wilful mis-statement or suppression of facts by the appellants.

Issue 1: Imposition of service tax demand on manufacturer-exporters for commission paid to foreign agents:
The appellants, manufacturer-exporters of handicraft/furniture, engaged foreign agents and paid them a commission during a specific period. Two Show Cause Notices were issued demanding service tax, which were confirmed by the original adjudicating authority. The Commissioner (Appeals) set aside the demand for the period before a certain date due to the introduction of a legal basis for reverse charge mechanism. The appellants argued against the imposition of penalties and the sustainability of the demand for the extended period.

Issue 2: Applicability of penalty under Sections 76, 77, and 78 of Finance Act, 1994:
The original adjudicating authority did not impose penalties under these sections for the demand related to the extended period, citing interpretational issues. The Tribunal found it difficult to sustain the demand for the extended period when penalties were not imposed. This raised questions about the validity of the demand and the imposition of penalties.

Issue 3: Availability of service tax exemption or Cenvat credit on commission paid to foreign agents:
The appellants contended that the service tax on the commission paid to foreign agents was exempt under a specific notification or could be claimed as Cenvat credit. This argument, while not fully accepted, supported the appellants' claim that there was no intentional mis-statement or suppression of facts on their part.

Issue 4: Allegations of wilful mis-statement or suppression of facts by the appellants:
The Tribunal considered the contentions of the appellants regarding the availability of service tax as credit or refund under a notification. The Tribunal found that the appellants had a reasonable case regarding the non-sustainability of the demand for the extended period. Consequently, the pre-deposit of service tax, interest, and penalty was waived, provided a specific amount was deposited within a specified timeframe.

This judgment addressed various issues related to the imposition of service tax demand on manufacturer-exporters, the applicability of penalties under the Finance Act, the availability of exemptions or credits, and allegations of mis-statement or suppression of facts. The Tribunal analyzed the contentions of the parties, considered the legal basis for the demands, and ultimately found in favor of the appellants regarding the non-sustainability of the demand for the extended period. The decision highlighted the importance of compliance with statutory provisions and provided specific directions for the appellants to follow to avoid dismissal of the appeal.