2018 (7) TMI 532 - AT - Service Tax

Penalty - Reverse Charge mechanism - Banking and other Financial services - maintaining Nostro and Vostro accounts with foreign banks to help their customers dealing in Export and Import business - utilisation of services of SWIFT, Belgium, for securely and reliably exchanging financial information relating to Banking transactions - Held that - During the relevant period, the issue whether an assessee is liable to pay service tax under reverse charge mechanism was under much litigation - This Tribunal in the case of Indian Overseas Bank Vs CST, Chennai, 2018 (7) TMI 513 - CESTAT CHENNAI has considered the very same issue and set aside the penalties, observing that the issue is interpretational in nature. There being no evidence that the appellants is guilty of deliberate suppression of facts with intent to evade payment of service tax, the penalties imposed is unwarranted - penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether penalties should be imposed on the appellants for non-payment of service tax on Nostro and Vostro accounts and SWIFT charges.

Analysis:
The case involved the appellants registered with the Service Tax Department under various services, including maintaining Nostro and Vostro accounts with foreign banks for facilitating customer transactions and utilizing SWIFT services for financial information exchange. The department contended that service tax was applicable on these charges under Banking and Financial services. A Show Cause Notice was issued, leading to the confirmation of the service tax demand with interest, albeit with waived penalties under Section 80 of the Finance Act, 1994. The Revenue appealed against the penalty waiver, resulting in the Commissioner (Appeals) directing the imposition of penalties. The appellants challenged this decision before the Tribunal.

The main argument presented by the appellant's counsel was that the liability for service tax and interest was not disputed, focusing solely on the penalty imposition. The debate centered on whether service tax was applicable to Nostro and Vostro accounts and SWIFT charges, deemed an interpretational issue. The appellants refrained from paying service tax under the belief that these transactions were not taxable under Banking and Financial services, especially under the reverse charge mechanism. Reference was made to the case law of Indian National Ship Owners' Association 2009 (13) STR 235, Bombay, upheld by the Supreme Court, to support their stance. The appellant sought the restoration of the original authority's decision to waive penalties under Section 80.

In contrast, the Revenue's representative supported the findings of the impugned order, advocating for penalty imposition. The Tribunal examined the records and noted that the adjudicating authority had justified the non-imposition of penalties due to the interpretational nature of the issue, invoking Section 80 of the Act. Considering the historical litigation and subsequent settlement on the liability for service tax under the reverse charge mechanism, as evidenced by the Indian National Ship Owners' Association case, the Tribunal concluded that penalties were unwarranted. Citing a previous case involving similar issues, the Tribunal set aside the penalties, emphasizing the lack of evidence of deliberate suppression of facts by the appellants to evade service tax payment. Consequently, the penalties were revoked while upholding the service tax demand and interest, granting the appellants consequential reliefs.

In the final pronouncement, the Tribunal set aside the penalties without disturbing the service tax demand and interest, allowing the appeal with any necessary consequential reliefs.