2009 (10) TMI 275 - AT - Service Tax

Penalty- In this case respondents were found to be engaged in providing services under category of business auxiliary service and they had failed to pay the service tax on the amount received. The Commissioner (Appeals) has reduced the penalty taking note of the fact that appellants discharged the tax liability with interest as soon as they came to know of the liability. Held that- I agree with the Commissioner (Appeals) when he says that it would be unfair if the provision of section 80 of Finance Act, 1994 is not resorted to in this case. Accordingly, appeal filed by the revenue is rejected.

Summary

Issues: Reduction of penalty under section 78 of the Finance Act, 1994 by the Commissioner (Appeals).

Analysis:
1. The department appealed against the reduction of penalty from Rs. 4,81,121 to Rs. 1,00,000 under section 78 of the Finance Act, 1994 by the Commissioner (Appeals). The respondents were found providing services under the category of business auxiliary service without paying the service tax on the amount received. The Commissioner (Appeals) considered that the appellants discharged the tax liability promptly upon becoming aware of it. It was noted that the appellants acted as agents of Reliance Industries Ltd., distributors, and del credere agents when required by Reliance Industries Ltd. The del credere services were deemed to be related to the promotion, marketing, or sale of goods, falling under business auxiliary services classification.

2. During the proceedings, no one appeared on behalf of the respondents. The learned SDR representing the revenue argued that penalty under section 78 is mandatory and this case did not warrant relief under section 80 of the Finance Act, 1994. The SDR also contested the Commissioner (Appeals) relying on the Tribunal's order.

3. The Commissioner found that the respondents promptly paid the service tax with interest upon being informed by the department, indicating their lack of awareness regarding the service tax liability and their good faith. Considering the nature of the appellants' activities, it was deemed reasonable to provide relief under section 80 of the Finance Act, 1994. The Tribunal agreed with the Commissioner (Appeals) that it would be unjust not to apply the provisions of section 80 in this case, leading to the rejection of the appeal filed by the revenue.