2014 (4) TMI 1331 - AT - Service Tax

Validity of SCN issued to the appellant regarding the service tax liability on the sale and purchase of foreign exchange - Liability to pay service tax under Rule 6(7B) of the Service Tax Rules, 1994, at the rate of 0.25% of the gross amount of currency exchanged - HELD THAT - Nowhere in the Statue there is any provision for demanding service tax on the ground that the consideration charged for providing service is not up to the expectations of the Revenue authorities. Here is a case where learned Commissioner has proceeded to determine the appropriateness or the correctness of the quantum of consideration charged by the appellants to their customers without even having any evidence to show that there was excess collection and the amount shown as service charges was in reality not the correct service charge. The order is totally contrary to the provisions of law, equity and justice. It is very sad to note that even penalty under Section 78 has been imposed equivalent to the service tax levied on the ground of suppression and mis-declaration whereas the whole proceedings have arisen because of lack of understanding of the legal provisions by the lower authorities. Conclusion - Rule 6(7B) is an optional provision and cannot be enforced if the service provider does not choose to avail of it. Additionally, penalties under Section 78 require clear evidence of suppression or mis-declaration. There are no justification to uphold the impugned order and allow the appeal at this stage itself finally and the appellant shall get back the refund of 50% which they have deposited within a reasonable time without further creating additional difficulties and passing orders which are contrary to the provisions of law. Appeal allowed.

2025 (1) TMI 847 - AT

1. ISSUES PRESENTED and CONSIDERED

The judgment primarily revolves around the following core legal questions:

Whether the show-cause notice issued to the appellant regarding the service tax liability on the sale and purchase of foreign exchange was valid.
Whether the appellant was liable to pay service tax under Rule 6(7B) of the Service Tax Rules, 1994, at the rate of 0.25% of the gross amount of currency exchanged.
Whether the imposition of penalty under Section 78 for alleged suppression and mis-declaration was justified.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of the Show-Cause Notice

Relevant Legal Framework and Precedents: The case concerns the applicability of service tax on banking and financial services, specifically the purchase or sale of foreign currency as defined under Section 65(12) of the Finance Act.
Court's Interpretation and Reasoning: The tribunal found that the show-cause notice should not have been issued as the appellant had correctly understood and complied with the legal requirements for paying service tax on foreign exchange transactions.
Key Evidence and Findings: The tribunal noted that the appellant charged a uniform fee for foreign exchange transactions and did not collect any additional consideration beyond what was invoiced.
Application of Law to Facts: The tribunal concluded that the proceedings initiated by the Revenue were not in accordance with the law, as the appellant had adhered to the legal provisions.
Treatment of Competing Arguments: The tribunal dismissed the Revenue's argument that the appellant was underreporting consideration, finding no evidence to support this claim.
Conclusions: The tribunal determined that the show-cause notice was invalid and unwarranted.

Issue 2: Liability Under Rule 6(7B)

Relevant Legal Framework and Precedents: Rule 6(7B) provides an option for service providers to pay service tax at 0.25% of the gross amount of currency exchanged, provided the consideration is not shown separately in the invoice.
Court's Interpretation and Reasoning: The tribunal emphasized that Rule 6(7B) is an optional provision and cannot be imposed on the service provider if they choose not to avail of it.
Key Evidence and Findings: The tribunal found that the appellant had shown the consideration separately in the invoices, making the option under Rule 6(7B) inapplicable.
Application of Law to Facts: The tribunal applied the legal provisions correctly, noting that the appellant's invoicing practices were in line with the statutory requirements.
Treatment of Competing Arguments: The tribunal rejected the Revenue's claim that the appellant's charges were inadequate and thus subject to the 0.25% service tax rate.
Conclusions: The tribunal concluded that the appellant was not liable under Rule 6(7B) as the option was not applicable in their case.

Issue 3: Imposition of Penalty Under Section 78

Relevant Legal Framework and Precedents: Section 78 deals with penalties for suppression and mis-declaration of service tax liability.
Court's Interpretation and Reasoning: The tribunal found no basis for imposing a penalty, as the appellant had not suppressed or mis-declared any information.
Key Evidence and Findings: The tribunal observed that the entire proceedings arose from a misinterpretation of the legal provisions by the lower authorities.
Application of Law to Facts: The tribunal applied the law correctly, determining that the appellant had complied with all legal requirements and that the penalty was unjustified.
Treatment of Competing Arguments: The tribunal dismissed the Revenue's justification for the penalty, emphasizing the lack of evidence for any wrongdoing by the appellant.
Conclusions: The tribunal set aside the penalty imposed under Section 78.

3. SIGNIFICANT HOLDINGS

Preserve Verbatim Quotes of Crucial Legal Reasoning: "Nowhere in the Statute is there any provision for demanding service tax on the ground that the consideration charged for providing service is not up to the expectations of the Revenue authorities."
Core Principles Established: The tribunal established that Rule 6(7B) is an optional provision and cannot be enforced if the service provider does not choose to avail of it. Additionally, penalties under Section 78 require clear evidence of suppression or mis-declaration.
Final Determinations on Each Issue: The tribunal allowed the appeal, invalidating the show-cause notice, ruling out the applicability of Rule 6(7B), and setting aside the penalty under Section 78. The appellant was entitled to a refund of the 50% service tax deposit made during the proceedings.

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