2018 (8) TMI 328 - AT - Service Tax

Penalty u/s 78 - reverse charge mechanism - revenue neutrality - service tax with interest paid on being pointed out - Held that - There is no dispute on the facts of the case that the appellant had received some services which were liable to service tax under reverse charge mechanism. When this was pointed out he paid service tax along with interest. It is also not in dispute that the service tax so paid could be claimed by them as CENVAT credit - When service tax is short paid by not reflecting the full value in the ST3 returns which subsequently detected during audit it will not be unreasonable to conclude that there was suppression with a mala fide intention. The assessee could have gained nothing since the entire amount could have been available to them as CENVAT credit. Since the entire exercise is revenue neutral, no mala fide can be attributed to them as there is nothing on record to show that they gained by not paying the Service Tax - penalty set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Liability to pay service tax under reverse charge mechanism for various services not paid by the appellant
- Validity of demand notice and penalty imposed under Sec.78 of Finance Act, 1994
- Invocation of extended period of limitation
- Allegation of suppression or misrepresentation of facts by the appellant
- Applicability of Sec.73(3) and Sec.73(4A) of Finance Act, 1994
- Omission of Sec.73(4A) and its impact on the case
- Revenue neutrality and absence of intent to evade payment of service tax
- Interpretation of mala fide intention in the context of CENVAT credit availability

Analysis:

The appellant, a manufacturer of empty glass bottles registered under service tax categories, faced an appeal against Order-in-Appeal for non-payment of service tax on legal, rent a cab, business auxiliary, and consultancy services. The appellant paid the due amount before the show cause notice was issued, but the lower authority confirmed the demand, interest, and imposed a penalty under Sec.78 of the Finance Act, 1994. The appellant challenged the demand notice on various grounds, including the discharge of the entire demand before the notice, limitation invocation, and no suppression of facts. The appellant argued that the payment was inadvertent and not intentional evasion.

The appellant contended that the lower authorities presumed suppression with mala fide intention, but the appellant's ability to claim CENVAT credit made the exercise revenue neutral. The appellant cited case laws to support their argument against penalty imposition. The appellant emphasized that the omission of Sec.73(4A) post-relevant period should impact the case's interpretation. The appellant highlighted that the penalty imposition was unjustified due to the revenue-neutral nature of the transactions.

The Departmental Representative argued that the appellant's failure to disclose services in their ST3 returns indicated mala fide intention to evade service tax. However, the Tribunal analyzed the case, considering the availability of CENVAT credit, and found no intent to evade payment. The Tribunal referenced the Jet Airways case upheld by the Supreme Court to support the decision. Ultimately, the Tribunal concluded that since the appellant stood to gain nothing by not paying service tax, the penalty under Sec.78 was unwarranted, and it was set aside.

In the final judgment, the Tribunal allowed the appeal to the extent that the penalty imposed under the Order-in-Original was upheld, and the Order-in-Appeal was set aside. The Tribunal's decision was based on the absence of intent to evade payment of service tax due to the revenue-neutral nature of the transactions and the availability of CENVAT credit to the appellant.