2010 (5) TMI 91 - AT - Service Tax

Penalty for delayed payment of service tax reimbursement of expenses - assessee condtended that even though appellants took registration in 1999, they could not pay the service tax since the principal did not reimburse the service tax to them. They had taken up with the principal in 1999 itself and after continual correspondence, the final reply from the principal was received only on 04.01.05 in which they agreed to reimburse the service tax paid by the appellants for the subsequent periods and not for the past. Held that the correspondence between the appellant and the principal regarding the payment of service tax also supports the case of the appellant that there was no intention to evade duty and in fact they were making efforts to get the money from the principal without realizing the consequences of non payment during such efforts since the service tax was paid immediately after search, penalty waived. Godown charges, loading and unloading charges are essentially part of consignment agent service - Therefore I do not fine any justification for reduction or deduction of reimbursed charges from the consideration received by the appellant matter remanded for allowing benefit of treatment of the amount received as inclusive of service tax

Summary

Issues:
- Imposition of penalty under Section 75, 76, 77, and 78 of Finance Act, 1994
- Reimbursement of service tax by principal
- Waiver of penalties under Section 80 of Finance Act, 1994
- Treatment of reimbursed charges and service tax amount

Imposition of Penalty:
The appellant, a consignment agent, did not pay service tax until March 2004 despite registration in 1999. After a search and subsequent deposit of service tax, penalties were imposed under various sections. The appellant appealed against this decision.

Reimbursement of Service Tax:
The appellant claimed that they did not pay service tax due to the principal's failure to reimburse them. Correspondence with the principal showed efforts to recover the amount. The principal agreed to reimburse for subsequent periods, not past ones. The appellant paid the service tax promptly after the search, indicating ignorance rather than evasion.

Waiver of Penalties:
The appellant sought waiver of penalties under Section 80 of Finance Act, 1994, citing their small partnership firm status, efforts to recover tax from the principal, and prompt payment post-search. The Tribunal found the case fit for penalty waiver based on the circumstances and relevant provisions of Section 73.

Treatment of Reimbursed Charges and Service Tax Amount:
The appellant's claim for non-inclusion of reimbursed charges was rejected, as godown and loading/unloading charges are integral to consignment agency services. The matter of treating the amount received as inclusive of service tax was remanded to lower authorities, but the appellant did not press this issue due to the waiver of penalties.

In conclusion, the Tribunal set aside all penalties imposed against the appellant under various sections of the Finance Act, 1994, based on the circumstances and the waiver granted. No further relief was provided in the judgment.