2017 (11) TMI 1435 - AT - Service Tax

Penalties - Non-payment of service tax - reverse charge mechanism - commission paid to foreign agent - Business Auxiliary Service - Held that - the issue appellant is liable to pay service tax under reverse charge mechanism on the commission paid to foreign agent was under much dispute and the litigation had traveled upto the Hon ble Supreme court when the decision of the Hon ble Supreme Court has been passed in 2010 whereas the disputed period in this appeal is from 18.4.2006 to April 2007, which is much before the decision of the Hon ble Apex Court - the penalties imposed are unwarranted and require to be set aside - penalties u/s 76 and 78 set aside - interest and penalty u/s 77 upheld - appeal allowed in part.

Summary

Issues Involved:
1. Allegation of non-payment of service tax on commission paid to foreign agent under reverse charge mechanism.
2. Contesting penalties imposed under sections 76 and 78 of the Act.

Analysis:
1. The case involved an allegation of non-payment of service tax on the commission paid to a foreign agent under the reverse charge mechanism for Business Auxiliary Service. The Commissioner (Appeals) had set aside the demand prior to a certain date, and the appellant was appealing regarding the demand after that date. The penalties imposed under sections 76 and 78, along with a penalty under section 77, were contested by the appellant. The appellant argued that the issue of liability to pay service tax on such commissions was a matter of interpretation, citing a relevant judgment. The appellant claimed there was no intention to evade payment, thus requesting the penalties to be set aside.

2. The Appellate Tribunal, after hearing both sides, noted that the penalties had been reduced by the Commissioner (Appeals) to a certain amount. It was observed that after a specific date, penalties under sections 76 and 78 could not be imposed simultaneously. The Tribunal also considered that the issue of liability for service tax on commissions paid to foreign agents had been a subject of dispute and had been settled by a Supreme Court judgment after the period in question. Therefore, the Tribunal concluded that the penalties imposed were unwarranted, given the circumstances and the timing of the disputed period. Consequently, the penalties under sections 76 and 78 of the Act were set aside, while upholding the service tax demand, interest post a certain date, and the penalty under section 77 of the Finance Act.

In conclusion, the appeal was partly allowed by modifying the impugned order to set aside the penalties under sections 76 and 78, without affecting the service tax demand, interest post a certain date, and the penalty under section 77 of the Finance Act.