9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (11) TMI 477 - AT - Service TaxImposition of penalty - Benefit of Section 80 - Malafide intention - Invocation of extended period of limitation - Held that - Respondent was an individual photographer who was providing photography service by clicking photographs and getting them developed and printed outside. It is not the case of Revenue that he was registered under State or Municipal law relating to shop and establishment or any other laws of State for carrying out commercial activity. So Shri Gupta qualified for coverage within the scope of Notification No.6/2001-ST when read with CBEC circular dated 27.12.2001 making the demand unsustainable. - in the absence of any evidence to the effect that the act of not taking registration and not paying tax was deliberate, extended period cannot be invoked. Consequently the demand pertaining to the period 1.5.2003 to 28.2.2005 is clearly barred by time as the show cause notice was issued in the month of October, 2006. (and w.e.f.1.3.2005, the appellant is eligible for small scale exemption under Notf.No.6/2005-ST). Thus, not only the appeal of the revenue is devoid of any merit, the demand itself needs to be set aside - Decided in favour of assessee.
Issues:
1. Interpretation of section 80 of Finance Act, 1994. 2. Application of Notification No.6/2001-ST and CBEC circular dated 27.12.2001. 3. Eligibility for small scale exemption under Notification No.6/2005-ST. 4. Invocation of extended period for demand. Issue 1: Interpretation of section 80 of Finance Act, 1994 The appeal was against an Order-in-Appeal that found the appellant entitled to the benefit of section 80 of the Finance Act, 1994 due to the absence of malafide on the respondent's part. The case was remanded to re-compute the demand after considering the threshold exemption limit. Revenue contended that the Commissioner (Appeals) did not provide a basis for concluding no malafide, thus section 80 was not applicable. Issue 2: Application of Notification No.6/2001-ST and CBEC circular dated 27.12.2001 The respondent, an individual photographer, clarified that he did not have a photo developing facility and got photographs developed through other labs, which included service tax charges. The respondent's income and lack of awareness of service tax liability were highlighted. The Tribunal analyzed Notification No.6/2001-ST and the CBEC circular, determining that the respondent fell within the exemption scope as an individual photographer not registered under commercial laws. Issue 3: Eligibility for small scale exemption under Notification No.6/2005-ST The Tribunal noted that the respondent was eligible for small scale exemption under Notification No.6/2005-ST from 1.3.2005 onwards. The demand amount was deemed unsustainable considering the gross amount received and the respondent's eligibility for exemption. Issue 4: Invocation of extended period for demand The Tribunal rejected the extended period invocation for demand, citing lack of evidence for deliberate non-registration and non-payment of tax. The demand for the period before 1.3.2005 was considered time-barred, and the appeal from Revenue was deemed meritless. The Tribunal dismissed Revenue's appeal and set aside the demand and penalty, emphasizing the respondent's circumstances and lack of deliberate malafide intent. This detailed analysis of the legal judgment showcases the Tribunal's thorough examination of the issues involved, including the interpretation of relevant legal provisions and notifications, the respondent's eligibility for exemptions, and the invocation of extended periods for demand. The decision ultimately favored the respondent, emphasizing fairness and justice in light of the specific circumstances presented during the proceedings.
|
