2022 (2) TMI 199 - AT - Service Tax

Levy of penalty u/s 76 and 77 of FA - service tax paid on being pointed out - intent to evade - suppression of facts or not - credit for the tax paid has not been given - HELD THAT - There is no malafide or suppression of facts on the part of the appellant. The appellant have bonafidely deposited the tax prior to the issuance of show cause notice and passing of the order-in-original dated 9.9.2020. The appellant is entitled to benefit under Section 180 and no penalty is imposable. Accordingly, the appeal is allowed. The penalties imposed under Section 76, 77 and 78 are set aside. The appellant is also entitled to credit of the taxes deposited ₹ 1,74,652/- - Appeal allowed.

Summary

Issues:
- Whether the penalty under Section 76 and 77 has been rightly imposed.
- Whether the credit for the tax paid has not been given in accordance with the law.

Analysis:
1. Penalty Imposition under Section 76 and 77:
The appellant, engaged in various services including 'direct selling agent' services for banks, was providing subvention to buyers of vehicles in collaboration with financing banks. The issue revolved around the non-taxation of this subvention amount by the Service Tax Department. The appellant contended that the non-payment of service tax on subvention was not malafide or due to suppression of facts, citing a CBEC circular and a Tribunal ruling supporting their stance. The Tribunal found no malafide intent or suppression of facts by the appellant, especially considering the voluntary tax deposit made before the issuance of the show cause notice. Consequently, the penalties under Section 76, 77, and 78 were set aside, ruling in favor of the appellant.

2. Credit for Tax Paid:
The appellant had deposited the tax amount prior to the issuance of the show cause notice and the subsequent order-in-original. The Tribunal acknowledged the appellant's bonafide actions and held that they were entitled to the benefit under Section 180, thereby ruling that no penalty was imposable. Additionally, the Tribunal recognized the appellant's entitlement to credit for the taxes deposited, as highlighted in the order-in-original and order-in-appeal. Consequently, the appeal was allowed, and the impugned order was modified in favor of the appellant, granting them the credit for the taxes deposited.

In conclusion, the Tribunal's judgment favored the appellant, emphasizing the absence of malafide intent or suppression of facts, leading to the setting aside of penalties under Section 76 and 77. The appellant was also granted credit for the taxes deposited, highlighting their bonafide actions in complying with the tax obligations.