2023 (12) TMI 851 - AT - Service Tax

Levy of penalty u/s 76, 77 and 78 of FA - penalty not quantified - it is submitted that the impugned order has gone beyond the scope of OIO and appeal/cross objections filed - extended period of limitation - HELD THAT - It is found that as soon as audit objection was raised demanding service tax of Rs. 7,31,324/- the appellant deposited Rs. 5,49,050/- alongwith interest on 02.07.2009 pertaining to the period after 18.04.2006 and contested the demand of Rs. 1,82,274/-. Further, we find that the period involved in the present case is 2005-2006 and 2006-2007 and the Hon ble Supreme Court in the case of Indian National Shipowners Association 2009 (12) TMI 850 - SC ORDER held that the assessee is not liable to pay service tax prior to 18.04.2006 and settled the issue finally which also shows that the issue relates to interpretation of law and extended period of limitation is not invokable and therefore, the penalty cannot be imposed. It is found that the impugned order has travelled beyond the OIO because in the OIO, the original authority held that the appellant is not liable to penalty under Section 76 and against the said finding, no appeal was filed by the department and no cross objections were filed before the lower authorities which also shows that the impugned order imposing penalty under Section 76 is bad in law and the same has travelled beyond the OIO - further it is also found that the appellant had a bonafide belief that he is not liable to pay tax and as soon as it was pointed out; he paid the tax as per his liability and contested that the demand is barred by limitation, which was accepted by the appellate authority. Further, in this case, there was no intention to evade the payment of service tax because the appellant would have been claimed cenvat credit of the tax paid by him which makes the entire transaction as revenue neutral. The imposing of penalty under Section 76 , 77 and 78 are not sustainable in law - Appeal allowed.

Summary

Issues involved:
The appeal challenges the imposition of penalties under Section 76 and 77 of the Finance Act, 1994 without quantification, concerning service tax on commission paid to agents promoting sales outside India under 'Business Auxiliary Service'.

Summary of Judgment:

Issue 1: Penalties Imposed by Commissioner (Appeals)
The appellant contested penalties imposed by the Commissioner (Appeals) under Sections 76 and 77 of the Act. The appellant argued that the penalties went beyond the scope of the Original Order-in-Original (OIO) and appeal filed. The appellant cited the absence of any appeal or cross-objections by the department against the OIO's findings regarding penalty under Section 76. The appellant also contended that the extended period was not applicable, referencing the Indian National Shipowners Association case, and argued that penalties were not justifiable due to a bonafide belief that no tax was payable.

Issue 2: Bonafide Belief and Cenvat Credit
The appellant asserted a bonafide belief that the service tax was not payable, supported by references to legal precedents. They claimed that the transaction was revenue neutral as they were entitled to Cenvat Credit for the tax paid. The appellant highlighted that penalties under Section 76 are only applicable in cases of failure to pay tax due to reasons other than fraud or suppression, and that penalties cannot be imposed under the extended period of limitation.

Judgment:
After reviewing the submissions and records, the Tribunal found that the penalties imposed under Sections 76, 77, and 78 were not sustainable in law. The Tribunal set aside the penalties, allowing the appeal with any consequential relief as per law. The judgment was pronounced on 13.12.2023.