2008 (3) TMI 36 - AT - Service Tax

Penalty - appellant paid commission to the foreign agents to procure export orders for their goods. Since the commission was paid in foreign exchange, the appellants were under misconception that they are not liable to pay Service Tax. However, when the departmental authorities informed that they are liable to pay Service Tax, they immediately paid the Service Tax along with interest much before the issue of SCN, penalty is not leviable in view of section 73(3) and CBEC Letter dated 3-10-2007

Summary

Issues:
- Liability to pay Service Tax on commission paid to foreign agents for procuring export orders.
- Imposition of penalty under Section 78 of the Finance Act.

Analysis:

1. Liability to pay Service Tax: The appeal involved a case where the appellant paid commission to foreign agents in foreign exchange to procure export orders. Initially, the appellants believed they were not liable to pay Service Tax on these transactions. However, upon being informed by the departmental authorities, they paid the Service Tax along with interest before the issuance of a show cause notice. The period in question was from 09.07.2004 to 31.3.2006, with the show cause notice issued on 9.10.2006. The appellant contended that under Section 73 (3) of the Finance Act, no show cause notice was required if the Service Tax liability was discharged promptly upon notification. Despite this, the revenue authorities proceeded against the appellants, leading to the imposition of a penalty under Section 78 of the Finance Act. The appellants challenged this penalty, arguing that they had a genuine doubt about the applicability of Service Tax on the said transactions.

2. Imposition of Penalty under Section 78: The main contention in the appeal revolved around the imposition of a penalty under Section 78 of the Finance Act. The appellants argued that there was no intention to evade payment of Service Tax, as they promptly paid the tax upon being informed by the department. They cited various legal precedents to support their argument that the Service Tax could not have been demanded prior to the insertion of Section 66A of the Finance Act, effective from 18.4.2006. The appellants also highlighted the provisions of Section 73 (3) of the Finance Act, which allowed for the payment of Service Tax before the issuance of a show cause notice. The appellate tribunal, after careful consideration, found merit in the appellant's arguments. They noted that the Service Tax had been paid along with interest before the show cause notice was issued, as per Section 73 (3), and that the appellants had a genuine doubt regarding the applicability of the tax. Therefore, the tribunal set aside the penalty imposed under Section 78 of the Finance Act and allowed the appeal with consequential relief.

In conclusion, the appellate tribunal ruled in favor of the appellants, emphasizing their prompt payment of Service Tax upon notification and their genuine doubt about the tax liability. The tribunal found no merit in the imposition of the penalty under Section 78 of the Finance Act and set aside the same, providing the appellants with the necessary relief.