2016 (11) TMI 1363 - AT - Service Tax

Service tax liability - commission paid to the foreign commission agents - reverse charge mechanism - period 18.04.2006 to 31.02.2007 - Held that - the Bombay High Court in the case of Indian National Shipowners Association 2008 (12) TMI 41 - BOMBAY HIGH COURT , clarified the law by their judgement dated 11.12.2008. We agree with the ld. Advocate that prior to declaration of law by the Hon ble High Court, there was utter confusion in the field and the law got settled only with the said judgement. The period involved in the present case is admittedly prior to the said decision of the Hon ble Bombay High Court and we find that the appellant deposited the dues on 23.03.2009 i.e. within a period of 3 weeks of declaration of law by the Bombay High Court. We also take note of the decision referred supra, wherein in an identical situation, the provisions of Section 80 were invoked and the benefit was extended to the appellant. Accordingly, we hold that in absence of any malafide on the part of the appellant, the imposition of penalty upon them is not justifiable, the same is accordingly set aside. The demand as also interest stands confirmed as not contested. Appeal disposed off - decided in favor of assessee.

Summary

Issues involved: Challenge to imposition of penalties under Sections 76, 77, and 78 of the Finance Act for non-payment of service tax on reverse charge basis to foreign commission agents.

Detailed Analysis:
1. Background: The appellant, engaged in yarn manufacturing and export, availed services of foreign commission agents for selling goods abroad. Revenue raised a demand for service tax liability from 18.04.2006 to 31.02.2007 on commission paid to foreign agents, leading to show cause notices and subsequent orders by the Adjudicating Authority.

2. Appellant's Argument: The appellant contested penalties imposed under Sections 76, 77, and 78, citing confusion regarding service tax payment on reverse charge basis during the relevant period. They referred to the Bombay High Court's ruling in Indian National Shipowners Association Ltd. case, clarifying liability post-18.04.2006. The appellant claimed a genuine belief that no service tax liability existed before this date, invoking Section 80 of the Finance Act and citing precedents like Kitec Industries India Ltd., Jain Irrigation Systems Ltd., and Nirlon Ltd.

3. Revenue's Submission: The Revenue argued that the appellant's failure to pay service tax on time constituted a violation of legal obligations, reflecting mala fide intent on their part. They sought to uphold the penalties imposed, emphasizing the appellant's duty to pay service tax promptly.

4. Tribunal's Decision: The Tribunal noted the Bombay High Court's clarification on service tax liability in the Indian National Shipowners Association case, resolving prior confusion in the field. Considering the appellant's deposit of dues within three weeks of the High Court's judgment, the Tribunal found no mala fide intent and invoked Section 80 in a similar situation. Consequently, the Tribunal set aside the penalties, confirming the demand and interest without contest.

5. Conclusion: The Tribunal, after reviewing submissions from both sides, acknowledged the legal clarity post the Bombay High Court's ruling and the appellant's prompt payment post the judgment. Given the absence of mala fide intent, the Tribunal deemed the penalties unjustifiable and overturned them, affirming the demand and interest. The appeals were disposed of accordingly.