2008 (6) TMI 34 - AT - Service Tax

C/F agent - non payment of tax - bona fide belief that whatever service tax might be paid by them will be reimbursed by the client no intention to evade payment of tax hence penalty not imposable u/s 78 - appellants have not make valid case against the penalties imposed under other provisions - penalties are relatable to the period of default of payment of service tax (2002 & 2003 - penalty u/s 75A cannot be resisted inasmuch as that section was omitted after the said period

Summary

Issues:
1. Service tax liability for Clearing & Forwarding Agent's Service during 2002 & 2003.
2. Imposition of penalties under Sections 75A, 76, 77 & 78 of the Finance Act, 1994.
3. Validity of penalties imposed by the original authority and upheld by the Commissioner (Appeals).
4. Application of amnesty scheme and its relevance to the case.
5. Justification for penalty under Section 78.

Issue 1: Service tax liability for Clearing & Forwarding Agent's Service during 2002 & 2003.
The appellants provided Clearing & Forwarding Agent's Service to their clients without paying the service tax. The department issued a show-cause notice demanding service tax and penalties under various sections of the Finance Act, 1994. The original authority confirmed the demand for service tax and imposed penalties, leading to an appeal by the appellants.

Issue 2: Imposition of penalties under Sections 75A, 76, 77 & 78 of the Finance Act, 1994.
Penalties were imposed on the appellants under Sections 75A, 76, 77 & 78. The appellants contested the penalties, arguing against the justification for each penalty under the respective sections. The penalties were a significant point of contention throughout the proceedings.

Issue 3: Validity of penalties imposed by the original authority and upheld by the Commissioner (Appeals).
The original authority imposed penalties under various sections, which were partially upheld by the Commissioner (Appeals). The appellants challenged the penalties, leading to further review by the Tribunal to determine the validity of the penalties imposed.

Issue 4: Application of amnesty scheme and its relevance to the case.
The appellants referenced an 'amnesty scheme' and cited previous Tribunal decisions where the scheme benefited service tax assessees. They argued that their actions were in line with the scheme and that the penalties imposed were unjustified based on the circumstances and the client's reimbursement offer, as per a specific letter.

Issue 5: Justification for penalty under Section 78.
The Tribunal found a valid point in the appellants' submissions regarding a letter from their client urging payment of service tax for reimbursement. This letter indicated the client's willingness to reimburse the tax amount, negating the allegation of intent to evade payment of service tax. Consequently, the penalty under Section 78 was vacated, while other penalties remained due to the default in payment of service tax during 2002 & 2003.

This detailed analysis of the judgment highlights the key issues, arguments presented, and the Tribunal's decision regarding the service tax liability, penalties imposed, application of the amnesty scheme, and the justification for penalties under different sections of the Finance Act, 1994.