2010 (6) TMI 215 - AT - Service Tax

Business Auxiliary Services- A show-cause notice was issued alleging that M/s. SOC was procuring inputs through the appellant and commission was paid by M/s. SOC to the appellant, the said service is appropriately covered under the category of Business Auxiliary Service and service tax was required to be paid by the appellant. Appellant contending that activity undertaken as transport contractor and transportation service provided. Held that records indicating bonafide belief that service tax on transportation of goods to be paid by recipient. Service tax paid voluntarily even when tax amount not received from recipient. Thus Service Tax liability confirmed. Penalties set aside.

Issues:
Appeal against Service Tax demand in 'Business Auxiliary Service' category with interest and penalties under Sections 76 and 77 of the Finance Act, 1994.

Analysis:
The appellant appealed against the confirmation of Service Tax demand in the 'Business Auxiliary Service' category, along with interest and penalties under Sections 76 and 77 of the Finance Act, 1994. The case involved the appellant providing transportation services to a company and invoicing for the same, including service tax. However, the nature of the service provided was not clearly indicated in the invoices. A show-cause notice alleged that the service fell under 'Business Auxiliary Service,' leading to a demand for Service Tax, interest, and penalties. The appellant contended that they believed the recipient of the service would discharge the Service Tax liability but ended up paying it themselves without contesting the liability. The appellant requested the waiver of penalties, citing their bona fide belief and compliance with paying the Service Tax.

The department argued that the appellant collected Service Tax in advance but paid it only upon being pointed out by the department, justifying the imposition of penalties under Sections 76 and 77 of the Finance Act, 1994. After hearing both sides, it was observed that the appellant genuinely believed the recipient would pay the Service Tax and acted in good faith by paying it themselves when the recipient did not discharge the liability. The adjudicating authority acknowledged the appellant's lack of intent to evade payment and the fact that the appellant had not withheld the Service Tax collected. Consequently, the penalties under Sections 76 and 77 of the Finance Act, 1994 were deemed unwarranted, and the liability of Service Tax was confirmed. The appellant was granted the benefit of Section 80 of the Finance Act, 1994 due to the newness of the provisions, leading to the dropping of penalties while confirming the Service Tax liability.

In conclusion, the appeal was disposed of with the penalties under Sections 76 and 77 of the Finance Act, 1994 being dropped, and the liability of Service Tax being confirmed, based on the appellant's bona fide belief and compliance with paying the Service Tax despite the circumstances.

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