2017 (8) TMI 908 - AT - Service Tax

Penalty u/s 78 - Banking and other Financial services - reverse charge mechanism - duty with interest paid on being pointed out - Held that - The levy of service tax on reverse charge mechanism during the period in question had been an area of dispute between the Revenue and the assessee, and it became clear only after the decision of the Hon ble Bombay High Court in the case of Indian national Ship Owners Association Vs. UOI 2008 (12) TMI 41 - BOMBAY HIGH COURT - penalty not imposable on appellant by invoking section 80 - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Appellant's failure to discharge service tax under reverse charge mechanism
- Imposition of penalty under Section 78 of the Finance Act, 1994
- Applicability of Section 80 of the Finance Act, 1994

Analysis:
1. Appellant's failure to discharge service tax under reverse charge mechanism:
The appellants availed taxable service under "Banking and other Financial services" from January 2006 to May 2007 but did not pay the service tax under reverse charge mechanism for services received from an overseas provider. After a letter from the Department, they paid a portion of the liability and later the remaining amount with interest. A show cause notice was issued, leading to confirmation of the demand and imposition of penalty under Section 78 of the Finance Act, 1994.

2. Imposition of penalty under Section 78 of the Finance Act, 1994:
The appellants challenged the penalty imposition, arguing that they had paid the entire service tax liability with interest once the confusion regarding payment under Section 66A of the Finance Act, 1994 was clarified by the Department. The appellant's representative contended that penalty under Section 78 was unwarranted as there was no suppression or misstatement of facts. Reference was made to a Tribunal decision supporting this argument.

3. Applicability of Section 80 of the Finance Act, 1994:
The Tribunal found merit in the appellant's argument, considering the historical dispute between Revenue and the assessee regarding service tax on reverse charge mechanism. The clarity on this issue emerged only after a High Court decision. Since the entire service tax was paid along with interest, the Tribunal held that penalty under Section 78 was not justified. Instead, invoking Section 80 of the Finance Act, 1994 was deemed appropriate in this case. Consequently, the penalty under Section 78 was set aside, and the appeal was allowed on this ground.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the penalty under Section 78 of the Finance Act, 1994 due to the payment of the entire service tax amount with interest and the historical ambiguity surrounding the reverse charge mechanism. The judgment highlighted the importance of clarity in tax laws and the application of relevant provisions to ensure fairness in tax enforcement.