2015 (2) TMI 1063 - AT - Service Tax

Intellectual Property Services - Taking a view that the assessee should have paid service tax and the amount paid to the Group Companies abroad as a receiver of service as Group Companies did not have office in India, proceedings were initiated culminating confirmation of demand of service tax of ₹ 46,70,785/- with interest and imposition of penalty equal to the tax - Commissioner (Appeals) took the view that waiver of penalty can be granted under Section 80 of the Finance Act, 1994 in view of the fact that the situation was one of revenue neutrality and the assessee had paid the entire amount of tax with interest - Held that - This is a case where the assessee could have taken Cenvat credit of service tax paid by them and therefore, there was no reason for the assessee to suppress the fact or resort to mis-declaration and therefore, we find ourselves in agreement with the view taken by the Commissioner (Appeals) that extended period could have been invoked in this case. We have taken note of the fact that the respondent-assessee was to pay tax as a receiver of service and not as a provider. Further, we also find that the Commissioner (Appeals) was right in waiving penalty under Section 80 of the Finance Act, 1994 and the provisions of Section 73(3) of the Finance Act, 1994 as it existed prior to 1.4.2011 would be applicable is also correct. Learned C.A. on behalf of the assessee submitted that even though the Commissioner (Appeals) has held that the appellant is liable to pay tax only within the normal period, the assessee would not claim any refund of tax or interest already paid by them. It is his only request to uphold waiver of penalty. We also find that the assessee paid tax with interest and did not propose to claim refund in spite of having order in their favour would show that the respondent-assessee had no such intention to avoid tax or want to avoid by law. Such being the position, we consider that the provisions of Section 80 of the Finance Act has been rightly invoked. In view of above position, we confirm the demand of service tax and interest as not contested and set aside the penalty. - Decided partly in favour of Revenue.

Summary

Issues:
1. Liability of service tax on payments made to associated companies located outside India for services.
2. Invocation of extended period for raising demand.
3. Waiver of penalty under Section 80 of the Finance Act, 1994.

Analysis:
1. The respondent-assessee provided various services and made payments to associated companies located outside India for services, including management fees for Intellectual Property Services. The Revenue contended that service tax should have been paid on these payments as the Group Companies did not have an office in India. The demand for service tax, interest, and penalty was confirmed for the period from 2009-10 to 2010-11. The Commissioner (Appeals) observed that the assessee had paid the entire tax amount with interest, leading to a situation of revenue neutrality. The assessee paid the tax as a receiver of service and not as a provider. The Tribunal agreed that the extended period could be invoked in this case, but upheld the waiver of penalty under Section 80 of the Finance Act, 1994. The Tribunal noted that the assessee did not intend to avoid tax or violate the law, as they did not seek a refund despite the order being in their favor.

2. The Tribunal found that the issue was narrow and could be conclusively decided at the current stage, leading them to consider the appeal alongside the stay application. The assessee was eligible for Cenvat credit on the service tax paid, indicating no intention to suppress facts or mis-declare. The Tribunal agreed with the Commissioner (Appeals) that the extended period could be invoked. The assessee's liability was as a receiver of service, not a provider, justifying the waiver of penalty under Section 80 of the Finance Act, 1994. The Tribunal confirmed the demand for service tax and interest, as the assessee did not contest these amounts and set aside the penalty.

3. The Tribunal emphasized that the assessee's compliance with tax payment, lack of intention to avoid tax, and the situation of revenue neutrality supported the invocation of Section 80 of the Finance Act, 1994 for waiving the penalty. The Tribunal confirmed the demand for service tax and interest, as the assessee did not contest these amounts and set aside the penalty. The appeal and stay application filed by the Revenue were disposed of accordingly.