2009 (2) TMI 130 - AT - Service Tax

Waiver of Penalty Section 80 when the appellant have discharged tax liability from October 2004 to March 2005 period along with interest while in view of Tribunal s Judgment in case of Hindustan Zinc Ltd. (supra) they were liable to pay the tax only with effect from 1-1-2005 it would be illogical to impose penalties on them under sections 76 77 and 78. - the provisions of section 80 of the Act are applicable to the facts of this case and therefore no penalty should have been imposed on the appellant Held that the Commissioner s order imposing penalty on the appellant under sections 76 77 and 78 of the Act is not sustainable and the same is set aside. The appeal is allowed.

Summary

Issues:
1. Imposition of penalties under sections 76, 77, and 78 of the Finance Act, 1994 for non-payment of service tax.
2. Applicability of section 73(3) regarding issuance of show-cause notice.
3. Interpretation of liability for payment of service tax by a service receiver in India from an Offshore Service Provider.

Analysis:
1. The appellant challenged the imposition of penalties under sections 76, 77, and 78 of the Finance Act, 1994. The Commissioner had confirmed a service tax demand against the appellant for receiving taxable "Intellectual Property Service" from an Offshore Foreign Service Provider. The appellant had paid the entire service tax amount and interest before the show-cause notice was issued. The appellant argued that confusion existed in the industry regarding the liability for payment of service tax during the disputed period. The Tribunal referred to the Hindustan Zinc Ltd. case and held that the appellant should not be penalized as they discharged the tax liability before the clarification on service tax liability from an Offshore Service Provider was issued.

2. The Tribunal considered the applicability of section 73(3) of the Finance Act, 1994, which came into effect from 10-9-2004. The appellant contended that since they paid the service tax even before the show-cause notice was issued, the provision of section 73(3) should apply, and no penalty should be imposed. The Tribunal referred to the Bhoruka Aluminium Ltd. case and held that when there is a bona fide doubt regarding service tax liability and the tax is paid before the issuance of a show-cause notice, penalties under section 78 should not be imposed.

3. The Tribunal analyzed the liability of a service receiver in India for payment of service tax to an Offshore Service Provider. It noted that confusion existed in the industry regarding this liability. The Tribunal referred to the Hindustan Zinc Ltd. case, which clarified that the service receiver in India would be liable to pay service tax from 1-1-2005 when receiving taxable services from an Offshore Service Provider without an office in India. The Tribunal held that since the appellant paid the tax before the clarification date, penalties under sections 76, 77, and 78 should not be imposed. The Commissioner's order imposing penalties was set aside, and the appeal was allowed.