2015 (12) TMI 546 - AT - Service Tax

Penalty u/s 78 - Goods Transport Agency Service - Held that - In the light of the judgement of the Hon ble High Court of Madras in the case of K.M.B. Granites Pvt. Ltd. (2014 (11) TMI 87 - Madras High Court), it is clear that transport service even when it is provided by the individual lorry/truck operators, is chargeable to service tax. - appellant is pleading that they should not be imposed penalty as during the relevant period, law of service tax in case of transportation service was not very clear. In the light of the facts and pleading of the appellant and considering the provisions of Section 80(1) of Finance Act, 1994, it is held that the penalty imposed under Section 78 of Finance Act, 1994 on the appellant is not sustainable - Decided in favour of assessee.

Summary

Issues:
1. Liability of service tax on transportation services provided by individual lorry owners who are part of a partnership firm.
2. Applicability of penalty under Section 78 of the Finance Act, 1994.

Analysis:
1. The case involves a dispute regarding the payment of service tax on transportation services provided by individual lorry owners who are part of a partnership firm. The appellant, represented by a Chartered Accountant, argued that service tax is not sustainable for services provided by individual lorry owners based on a decision of CESTAT Bangalore in a previous case. The appellant contended that they had already paid the service tax and interest in full, and sought exemption from penalty under Section 80 of the Finance Act, 1994, citing lack of clarity during the relevant period regarding the payment of service tax for transport services.

2. On the other hand, the Revenue, represented by an A.R., argued that services provided by individual transport operators are indeed liable for service tax, citing a judgment of the Hon'ble High Court of Madras. The Revenue maintained that individual truck operators fall under the definition of "commercial concern" as per the Finance Act, 1994. After hearing both sides, the Tribunal considered the submissions and the relevant legal provisions.

3. The Tribunal noted that the appellant did not seek a refund of the service tax and interest already paid, indicating no need to discuss their liability further. However, in light of the judgment of the Hon'ble High Court of Madras, the Tribunal clarified that transport services, even when provided by individual lorry/truck operators, are subject to service tax. Regarding the penalty imposed under Section 78 of the Finance Act, 1994, the Tribunal found in favor of the appellant. Considering the lack of clarity in the law during the relevant period and the provisions of Section 80(1) of the Finance Act, 1994, the Tribunal held that the penalty imposed on the appellant was not sustainable.

4. Consequently, the Tribunal partially allowed the appeal by setting aside the penalty imposed on the appellant by the original authority and upheld by the Commissioner (Appeals). The judgment highlights the importance of clarity in tax laws and the application of relevant legal provisions to determine the liability of service tax on transportation services provided by individual lorry owners who are part of a partnership firm.