2019 (10) TMI 1203 - AT - Service Tax

Imposition of penalty - service tax along with interest paid before issuance of SCN - service of commission from foreign based commission agents - reverse charge mechanism - N/N. 18/09-ST - HELD THAT - Admittedly the commission paid to the foreign based agent was exempted if the same is less than 1% of the FOB value of the goods. However there were other procedural conditions also, subject to satisfaction of which the said exemption was to be extended. As such, in case the appellant would have claimed the benefit of the Notification in question they would have been entitled to the benefit of the same. The appellant cannot be said to be guilty of mala fide so as to invoke penal provisions against them - appeal allowed - decided in favour of appellant.

Summary

Issues:
1. Liability to pay service tax on commission amount paid to foreign based commission agents under Section 66A.
2. Imposition of penalty for non-discharge of tax liability and claiming exemption under Notification No.18/09-ST.

Analysis:
1. The case involved the liability of the appellants, manufacturers of readymade garments, to pay service tax on commission amounts paid to foreign based commission agents under Section 66A. The appellants had not discharged their tax liability initially, leading to an audit objection. Subsequently, they deposited the service tax along with interest. However, penalty proceedings were initiated against them through a show cause notice. The Original Adjudicating Authority imposed a penalty equal to the service tax amount, which was upheld by the Commissioner (Appeals) and challenged in the present appeal.

2. The main contention raised by the appellants was that since they had already deposited the service tax before the issuance of the show cause notice, there was no need for further penalty imposition. Additionally, they argued that they were entitled to an exemption under Notification No.18/09-ST, which exempts service tax on commission agents if the commission paid is less than 1% of the FOB value of the goods, subject to certain conditions. The Revenue, on the other hand, argued that since the appellants had not discharged their tax liability or claimed the exemption during the relevant period, the penalty was rightly imposed.

3. Upon review of the case, the Tribunal found that the commission paid to the foreign based agent was indeed exempted if it was less than 1% of the FOB value of the goods, subject to procedural conditions. The Tribunal concluded that if the appellants had claimed the benefit of the exemption notification, they would have been entitled to it. Therefore, the Tribunal held that the appellants could not be considered guilty of any mala fide intentions to warrant the imposition of penalties. Consequently, the Tribunal set aside the penalty imposed on the appellants and allowed their appeal in this regard.