2009 (7) TMI 517 - AT - Service Tax

Business Auxiliary services-Notification No. 25 of 2004- Penalty- The appellants are engaged in the business of Commission Agent, which service is taxable under the category of Business Auxiliary Services. However, the said services were exempted from payment of service tax after 8-7-2004 vide Notification No. 13/2003. The said Notification was rescinded and another Notification 25/2004, dated 10-9-2004 was issued exempting the services under the category of Business Auxiliary Services excluding Commission Agent service. Appellant had paid the entire service tax along with interest immediately after starting of the investigation. Held that- it is a fit case to invoke section 80 of Finance Act, 1994 and extend the benefit to the appellants. Accordingly, penalties imposed upon the appellants under various sections of Finance Act, 1994 are set aside.

Summary

Issues:
1. Pre-deposit of penalties under various sections of Finance Act, 1994.
2. Applicability of service tax on Commission Agent services.
3. Interpretation of notifications exempting Business Auxiliary Services.
4. Bar of limitation in issuing show-cause notice for non-payment of tax.
5. Imposition of penalties based on bona fide misinterpretation.
6. Consideration of section 80 of the Finance Act, 1994 for penalty waiver.

Analysis:
1. The appellants had deposited the entire amount of Service Tax, leading to the dispensation of the pre-deposit condition for penalties. This allowed the appellate tribunal to proceed with deciding the appeal without the need for further deposits.

2. The appellants, engaged in the business of Commission Agent services, were initially exempted from paying service tax under specific notifications. However, a subsequent notification did not include Commission Agent services, leading to a dispute regarding the applicability of service tax.

3. Following an investigation in November 2006, it was discovered that the appellant had not fulfilled its tax obligations. A show-cause notice was issued in February 2007, prompting the appellant to pay the entire service tax along with interest immediately after the investigation commenced.

4. The challenge in the appeal primarily focused on the imposition of penalties. The appellant argued that the notice issued after a certain period was time-barred due to a genuine misinterpretation of notifications, asserting no mala fide intent and invoking section 80 of the Finance Act, 1994 for relief.

5. The revenue contended that the appellant's failure to register and discharge their tax liability warranted upholding the imposed penalties, emphasizing the importance of fulfilling tax obligations regardless of confusion or misinterpretation.

6. After considering both arguments, the tribunal agreed with the appellant's position, acknowledging the confusion surrounding the tax obligations during the relevant period. The tribunal invoked section 80 of the Finance Act, 1994, to waive the penalties imposed, as the appellant had accepted and paid the due tax along with interest, without any evidence of mala fide intent. The demand for tax and interest was confirmed, while the penalties were set aside, concluding the appeal and stay petition accordingly.