2022 (12) TMI 1144 - AT - Service Tax

Levy of Service tax - Business Auxiliary service of not - commission amount paid to foreign Commission agent - extended period of limitation - Revenue Neutrality - HELD THAT - As regards the question of extended period of limitation under proviso to Section 73(1) of the Finance Act, 1994, the same would not be available to the Department on the ground of revenue neutrality. We are of the view that the demand, having been raised by invoking the longer period of limitation is hit by the provisions of Section of the Act. If non-registration and non-filing of returns is the criteria for rejecting the appellant‟s plea of bona fide belief and holding against them, the plea of limitation would not be available to any assessee, inasmuch as the Service Tax liabilities would arise only in those cases where the appellants are not registered and are not filing the returns. Coming to the bona fide belief of the assessee, there are number of factors which are required to be considered. As no intention to contravene the provisions of Finance Act, 1994 and of the rules made thereunder can be attributed to the appellant for the reason that even if they are required to pay Service Tax on the disputed service, in question, provided by foreign agent, the entire Service Tax paid under RCM would be immediately available to them as Cenvat Credit and collection of Service Tax from the appellant would be a revenue neutral exercise - there are plethora of judgments by various Courts that no mala fide can be attributed to an assessee so as to invoke the longer period of limitation. The demand is barred by limitation and is required to be set aside - Appeal allowed.

Issues:
1. Confirmation of demand of service tax, interest, and penalties under Sections 76, 77, and 78 of Finance Act, 1994.
2. Exemption from payment of service tax under Notification No. 41/2007 and/or Notification No. 18/2009.
3. Availability of service tax as credit and intention to evade payment of tax.
4. Issuance of show cause notice and limitation period.
5. Definition of 'Business Auxiliary Service' and relevant clause for service tax recovery.

Confirmation of Demand of Service Tax, Interest, and Penalties:
The appeal was against the confirmation of demand of service tax, interest, and penalties under Sections 76, 77, and 78 of the Finance Act, 1994 by the Commissioner (Appeals). The Revenue claimed that the appellant did not discharge service tax liability on commission paid to a foreign Commission agent, which falls under "Business Auxiliary Services" as defined under Section 65(19) of the Finance Act, 1994. The appellant argued that the service was exempt from service tax under specific notifications. The Tribunal held that the demand was hit by the provisions of the Act due to the longer period of limitation invoked by the Revenue, and the plea of limitation should be considered based on various factors.

Exemption from Payment of Service Tax:
The appellant contended that the service was exempt from service tax under Notification No. 41/2007 and/or Notification No. 18/2009. The Tribunal analyzed the argument but ultimately focused on the limitation period invoked by the Revenue, stating that the demand was not sustainable due to the absence of intention to evade tax.

Availability of Service Tax as Credit and Intention to Evade Payment of Tax:
The appellant argued that the service tax demanded was available as credit, indicating no intention to evade tax. They also highlighted that the show cause notice was issued after the service tax was paid along with interest, as per the provisions of the Act. The Tribunal agreed that the demand was barred by limitation and set aside the impugned order.

Issuance of Show Cause Notice and Limitation Period:
The appellant raised concerns regarding the issuance of the show cause notice and the limitation period for demanding service tax. The Tribunal examined the grounds for invoking the longer period of limitation and concluded that the demand was not sustainable as there was no intention to contravene the provisions of the Finance Act, 1994.

Definition of 'Business Auxiliary Service' and Relevant Clause for Service Tax Recovery:
The appellant argued that the department did not clarify the relevant clause referred to in the definition of 'Business Auxiliary Service' for the proposed service tax recovery. The Tribunal considered the arguments and emphasized that the demand was barred by limitation, as there was no intention to evade tax, leading to the appeal being allowed with consequential relief.

Judgment Delivery:
The impugned order was set aside, and the appeal was allowed with any consequential relief as per law. The Tribunal pronounced the judgment in the open court on 22.12.2022.

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