2015 (11) TMI 521 - AT - Service Tax

Demand of service tax - GTA service - Penalty u/s 78 - Held that - it is audit party during the audit, has pointed out the short payment from the books of accounts of the appellant which shows that appellant have been correctly recording the data in respect of both the services in their books of account. If this is so, then it cannot be said that there is malafide intention on the part of the appellant to evade service tax payment. It is also taken into account that the appellant has paid service tax alongwith major portion of interest before issuance of show cause notice. Taking into the consideration above facts, I am of the view that appellant have shown reasonable cause for waiver of penalty by invoking Section 80 of Finance Act. Therefore, I waive the penalty imposed under Section 78. However the demand of Service tax alongwith interest and payment thereof by the Appellant is maintained - Decided partly in favour of assessee.

Summary

Issues:
1. Appeal against Order-in-Appeal upholding Order-in-Original for non-payment of service tax on sales commission and GTA service.
2. Dispute regarding imposition of penalty under Section 78.
3. Argument for waiver of penalty based on absence of malafide intention and legal disputes.

Analysis:
1. The appellant, registered for Business Auxiliary Services, faced a demand for service tax on payments to foreign agents as sales commission and GTA service under reverse charge mechanism. The original authority confirmed the demand, penalties, and interest. The Commissioner (Appeals) upheld this decision, leading to the current appeal against the imposition of penalties.

2. The appellant's consultant sought to waive the penalty under Section 78, emphasizing the absence of malafide intent for non-payment of service tax. The consultant argued that legal disputes existed regarding the service tax on commission payments to foreign agents, citing a Supreme Court case. Regarding GTA service tax, clerical errors led to underpayment, but the appellant maintained accurate records in their accounts, indicating no deliberate evasion.

3. The Revenue representative contended that the appellant, being aware of service tax laws, displayed malafide intent by underreporting GTA figures in ST-3 returns. The penalty under Section 78 was justified, as per the original authority and Commissioner (Appeals), due to the significant discrepancy between freight data in accounts and returns.

4. The Tribunal, after considering both sides' arguments, noted that the appellant had paid the service tax and interest, not contesting the tax demand. The main issue was the waiver of the penalty under Section 78. The Tribunal acknowledged the legal uncertainty regarding service tax on foreign commission agents and the appellant's accurate record-keeping for GTA services. Given the absence of malafide intent, payment before the show cause notice, and reasonable cause shown, the Tribunal decided to waive the penalty under Section 78 while upholding the service tax demand and interest payment.

5. In conclusion, the Tribunal partially allowed the appeal, maintaining the service tax demand and interest payment while waiving the penalty under Section 78 based on the appellant's reasonable cause for non-payment and legal uncertainties surrounding the disputed services.