2017 (10) TMI 350 - AT - Service Tax

GTA service - non-payment of service tax after 31.3.2005 - appellant case is that they bonafidely believed that being a proprietory concern they would not fall within the definition of GTA as per the amendment brought forth by N/N. 35/2004-ST dt.31.12.2004 - Abatement - Held that - The appellant has to furnish necessary document / declaration to avail the benefit of 75% abatement in terms of notification 32/2004 - the issue whether the appellant is eligible for abatement has to be verified by the adjudicating authority for which the matter requires to be remanded. Penalties - Held that - appellant has put forward reasonable cause for non-payment of service tax and the penalties under Section 76 and 78 are required to be waived - penalties set aside. Appeal allowed in part and part matter on remand.

Summary

Issues:
Non-payment of service tax for a specific period, eligibility for abatement under notification 32/2004, imposition of penalties under Section 76, 77, and 78 of the Finance Act, 1994.

Analysis:
The appellants, engaged in trading of Limestone and minerals, were registered under the category of 'Goods Transport Agency Services' and paid service tax on freight until 31.3.2005. However, they ceased payment post 1.4.2005, leading to a show cause notice for non-payment between 1.4.2005 to 28.2.2006. The original authority confirmed a demand of &8377;1,42,460/- with interest and penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The Commissioner (Appeals) upheld this decision, prompting the current appeal.

The appellant's counsel argued that the appellant stopped paying service tax post 31.3.2005 due to a genuine belief that, being a proprietary concern, they did not fall under the definition of GTA as per a specific notification. The appellant accepted the liability to pay service tax but contested the eligibility for abatement under notification 32/2004 and the penalties imposed. The counsel requested a remand to verify eligibility for the abatement and argued against the penalties, citing confusion and a lack of intent to evade taxes.

The respondent reiterated the findings, emphasizing the appellant's liability to pay service tax on freight charges. After hearing both sides, the Tribunal acknowledged that the appellant did not contest the liability to pay service tax but focused on the eligibility for abatement. Referring to a relevant case law, the Tribunal held that the issue of abatement eligibility needed verification and remanded the matter for the same.

The counsel strongly argued for setting aside the penalties, highlighting the appellant's belief that they were not covered under GTA due to being a proprietary concern. The Tribunal noted the confusion surrounding the definition of GTA during the relevant period and found that the appellant had a reasonable cause for non-payment. Consequently, the penalties under Sections 76 and 78 were waived.

In the final decision, the appeal was partly allowed by setting aside the penalties under Sections 76 and 78 while upholding the penalty under Section 77. The matter was partly remanded for verifying the eligibility of credit based on necessary documents, ultimately disposing of the appeal accordingly.