2010 (2) TMI 220 - AT - Service Tax

Business Auxiliary Services-Penalty- The appellant is engaged in the manufacture of Refined Cotton Oil inputs i.e. raw material Cotton Waste Oil is used and after procession on inputs finished goods refined cotton oil is coming into existence which is sold in market. The inputs were received from various customers by the appellant for refining and after receipt of the said inputs the same are to be processed are accounted in the Daily stock Account Register and cleared from the factory on payment of duty as applicable rates. During the course of investigation, the preventive officers concluding the activity of refining as job work and asked the appellant to pay service tax under the category of Business Auxiliary Services. Held that- the appellant has paid the Central Excise duty on the manufacturing activity taken over by them it cannot be termed that there was any intention of the appellant to evade any payment of service tax. With these observations, I do not find any merit in the impugned order, same is set aside and the appeal is allowed.

Summary

Issues:
- Confirmation of penalties under Section 76, 77 & 78 of the Finance Act, 1994.
- Applicability of Business Auxiliary Services (BAS) to the appellant's activities.
- Claim of willful suppression of facts by the appellant.
- Consideration of merits for levy of penalties despite not challenging the adjudication order.
- Benefit of Section 80 of the Finance Act not provided by the Commissioner.

Analysis:
1. The appeal challenged the revisional order confirming penalties under Section 76, 77 & 78 of the Finance Act, 1994. The appellant, engaged in manufacturing Refined Cotton Oil, faced penalties due to the classification of their activity as Business Auxiliary Services (BAS) by the preventive officers. The appellant argued that their activity constitutes manufacturing, and they have paid excess duty on the refined oil. Despite this, the Commissioner revised the assessment, alleging willful suppression of facts to evade service tax, leading to the imposition of penalties.

2. The appellant contended that they are not covered under BAS, as they are engaged in manufacturing and pay Central Excise duty. The appellant's representative highlighted that the appellant had not challenged the adjudication order but sought to prove their lack of intent to evade service tax during the penalty proceedings. The appellant's argument emphasized their compliance with Central Excise duty to support their claim of no intention to evade service tax.

3. The Department Representative (DR) argued that since the order of service tax levy had become final and unchallenged, the appellant could not contest the merits in the penalty proceedings. However, the Member (Judicial) found this argument irrelevant, emphasizing that the penalty proceedings required a separate consideration of whether there was an intention to evade service tax. The Member noted that the appellant had the right to establish their bonafide intentions during the penalty proceedings, even without challenging the adjudication order.

4. The Member further considered the appellant's claim regarding the non-consideration of Section 80 of the Finance Act by the Commissioner. The appellant's payment of Central Excise duty on their manufacturing activities was highlighted as evidence of their lack of intent to evade service tax. The Member concluded that there was no merit in the impugned order, setting it aside and allowing the appeal based on the appellant's arguments and the lack of intention to evade service tax.

5. In the final pronouncement, the Member (Judicial) set aside the impugned order and allowed the appeal, emphasizing the appellant's right to prove their bonafide intentions in the penalty proceedings, separate from the adjudication order's finality. The decision highlighted the importance of considering the specific circumstances of the case in penalty proceedings and the appellant's compliance with Central Excise duty as indicative of their lack of intent to evade service tax.