2009 (6) TMI 389 - AT - Service Tax

Penalty - I find that no prima facie case has been made out for unconditional waiver on the basis of bona fide belief entertained by the applicants for the reason that Notification No. 13/2003- ST granting exemption in respect of payment of service tax by commission agent is restricted to commission agent dealing with agricultural products vide Notification No. 8/2004-S.T., dated 9-7-2004 and Notification No. 6/99-ST., dated 9-4- 1999 providing for exemption when the amount was received in convertible foreign exchange and not repatriated outside India was rescinded by Notification No. 21/2003, dated 20-11-2003. The submission that no notice ought to have been issued since the Service tax was already paid is also not tenable prima facie case not made out stay granted partly

Summary

Issues:
- Application for waiver of pre-deposit of penalty for delayed payment of service tax.
- Claim of exemption based on Notification No. 13/2003-ST and Notification No. 21/03-ST.
- Consideration of prima facie case for penalty imposition.
- Direction for pre-deposit of penalty and compliance deadline.

Analysis:
The judgment by the Appellate Tribunal CESTAT, CHENNAI, involved a case concerning the application for waiver of pre-deposit of penalty amounting to Rs. 2,53,041 for delayed payment of service tax under Section 76 of the Finance Act, 1994, and Rs. 3,000 for delayed filing of ST-3 returns under Section 77 of the same Act. The applicants argued that they had a bona fide belief in an exemption from service tax payment based on specific notifications. They relied on Notification No. 13/2003-ST and Notification No. 21/03-ST, which provided exemptions under certain conditions related to convertible foreign exchange transactions. The consultant for the appellant contended that no penalty should be imposed due to this belief and also cited Section 73(3) of the Finance Act, 1994, which states that no notice shall be issued for a tax amount already paid.

Upon careful consideration of the submissions, the Tribunal found that there was no prima facie case for an unconditional waiver of the penalty. The exemption claimed by the applicants was limited to commission agents dealing with agricultural products as per subsequent notifications rescinding the earlier ones. The argument that no notice should have been issued since the service tax was already paid was deemed untenable as the penalty was imposed for late filing of returns and late payment of service tax. Consequently, the Tribunal directed the pre-deposit of Rs. 75,000 towards the penalty within four weeks from the date of the order. Upon such deposit, the pre-deposit of the remaining penalty amount would be waived, and the recovery stayed pending the appeal. Failure to comply with this direction would lead to the vacation of the stay and dismissal of the appeal without prior notice.

The judgment also specified a compliance deadline of 17-7-2009, emphasizing the importance of adhering to the directed pre-deposit of the penalty amount. The decision was dictated and pronounced in open court by the Vice-President of the Tribunal.