2019 (6) TMI 1511 - AT - Service Tax

Validity of issuance of SCN - entire amount of service tax along with applicable interest was deposited before issuance of SCN - Reverse charge mechanism - Business Auxiliary Service - software service and patent related expenses - legal charges - period 2013-14 and 2014-15 - HELD THAT - The present issue involved in this appeal is no more res-integra in view of the decision of the Tribunal in the case of M/S BHORUKA ALUMINIUM LIMITED. VERSUS THE COMMISSIONER OF CENTRAL EXCISE SERVICE TAX, MYSORE 2016 (11) TMI 1292 - CESTAT BANGALORE where it was held that Section 73(3) is very clear as it says that if tax is paid along with interest before issuance of the show cause notice, then in that case, show cause notice shall not be issued. There is no requirement to issue SCN - Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Liability of service tax under reverse charge mechanism
- Imposition of penalty under Section 78 of the Finance Act, 1994
- Allegation of suppression of facts by the appellant

Analysis:
1. Liability of service tax under reverse charge mechanism: The appellant, registered under "Business Auxiliary Service," organized travel and business exhibitions across India. During an audit for 2013-14 and 2014-15, it was discovered that service tax on software service, patent-related expenses, and legal charges paid under reverse charge basis were not paid. The Adjudicating Authority confirmed the demand, and the Commissioner upheld the decision. The appellant contended that they paid the service tax promptly upon notification and that there was no suppression as all transactions were recorded. The Tribunal referred to a previous decision and ruled in favor of the appellant, stating that the liability was acknowledged and paid promptly upon discovery, absolving them of further penalty.

2. Imposition of penalty under Section 78 of the Finance Act, 1994: The appellant argued that since they paid the service tax promptly after being informed during the audit, there was no need for a show-cause notice or penalty. The Department claimed suppression of facts regarding irregular Cenvat credit. The Tribunal examined relevant sections of the Finance Act and previous cases cited. It found that if tax is paid along with interest before a show-cause notice, the notice shall not be issued. The Tribunal concluded that the appellant promptly paid the tax upon being informed during the audit, and there was no evidence of suppression to evade tax. Consequently, the imposition of penalty under Section 78 was deemed unjustified and set aside.

3. Allegation of suppression of facts by the appellant: The Department alleged suppression of facts by the appellant for not disclosing irregular Cenvat credit. However, the Tribunal found no material evidence supporting this claim. The Tribunal emphasized that the appellant promptly paid the service tax upon being informed during the audit, indicating a lack of intent to evade tax. As a result, the Tribunal set aside the impugned orders and allowed the appeal, providing consequential benefits to the appellant.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the impugned orders and allowing the appeal due to the prompt payment of service tax upon notification during the audit, absolving them of further penalties and dismissing allegations of suppression of facts.