2015 (5) TMI 174 - AT - Service Tax

Discharge of the service tax liability under reverse charge mechanism - Banking and other Financial Services - Penalty u/s 78 - Held that - If the assessee discharges the service tax and interest liability on his own ascertainment or on being pointed out by the Central Excise Officers, no show-cause notice is required to be issued as per provisions of Section 73(3) of the Finance Act, 1994. We also find that the appellant could have entertained a bonafide belief that such funds which are raised under ECB and amount paid by them to the foreign bank, may not be covered under the tax net. In our considered view, this is a fit case for invoking provisions of Section 80 of the Finance Act, 1994. We set aside the penalty imposed by the lower authorities by invoking the provisions of Section 80 of the Finance Act, 1994. - Decided against Revenue.

Summary

Issues Involved:
Service tax liability under reverse charge mechanism for 'Banking and other Financial Services' and raising funds through External Commercial Borrowings (ECB). Imposition of penalty under Section 78 of the Finance Act, 1994, and non-imposition of penalty under Section 76 of the same Act.

Analysis:

Issue 1: Service Tax Liability under Reverse Charge Mechanism
The appeals were filed against the same Order-in-Appeal concerning the service tax liability under the reverse charge mechanism for 'Banking and other Financial Services' and raising funds through ECB. The Tribunal noted that the appellant had not discharged the service tax liability initially. However, it was highlighted that the appellant eventually paid the entire service tax liability and interest before the issuance of the show-cause notice. The Tribunal emphasized that if the assessee voluntarily pays the service tax and interest upon realizing the liability, without the need for a show-cause notice, it aligns with Section 73(3) of the Finance Act, 1994. The Tribunal considered the possibility that the appellant may have genuinely believed that the funds raised through ECB and payments to a foreign bank were not taxable. Consequently, the Tribunal invoked the provisions of Section 80 of the Finance Act, 1994, and set aside the penalty imposed by the lower authorities.

Issue 2: Imposition of Penalty
Regarding the imposition of penalties, the Departmental Representative contended that the appeal was against the penalty imposed under Section 78 of the Finance Act, 1994, while no penalty was imposed under Section 76 of the same Act. The Tribunal, however, observed that since the appellant had voluntarily discharged the service tax liability and interest, and considering the circumstances of the case, it was appropriate to apply the provisions of Section 80 of the Finance Act, 1994. Consequently, the Tribunal set aside the penalties imposed by the lower authorities, including the penalty sought by the Revenue under Section 76. The Tribunal ruled in favor of the appellant, rejecting the Revenue's appeal and allowing the appeal filed by the assessee.

In conclusion, the Tribunal found in favor of the appellant, setting aside the penalties imposed and invoking the provisions of Section 80 of the Finance Act, 1994, based on the appellant's voluntary payment of the service tax liability and interest. The judgment highlighted the importance of voluntary compliance and the applicability of relevant provisions in determining tax liabilities and penalties.