2010 (6) TMI 292 - AT - Service Tax

Charge of Service Tax - The appellants deposited the service tax to the department by adopting the rate of 10 per cent as was applicable during 2004-05. The lower authorities have, however, entertained a view that the rate of service tax required to be applied is 12 per cent as is in force during 2006-07. difference amount with interest paid by assessee. Now the assesese made the appeal for the waiver of penalty which was rejected by Commissioner (Appeals). Held that - in the light of the decision of Reliance Industries Ltd. v. CCE 2008 -TMI - 4007 - CESTAT, AHMEDABAD, matter was remanded to Commissioner (Appeals).

Summary

Issues:
1. Applicability of service tax rate - date of rendering service vs. date of payment.
2. Imposition of penalty under section 76.
3. Compliance with stay order and pre-deposit conditions.

Analysis:

1. The appellant, a registered service taxpayer in the category of Construction services, rendered a service to a client in 2004-05 but received consideration in 2006-07. The appellant paid service tax at a rate of 10%, applicable in 2004-05, while authorities argued for the 12% rate in force in 2006-07. Citing the case of Reliance Industries Ltd. v. CCE, the appellant contended that the tax rate at the time of service provision should apply, not at the payment date. The appellant did not dispute the differential service tax of Rs. 19,520 and paid it with interest.

2. The appellant sought to avoid pre-deposit of penalty amount, arguing that as per the Reliance Industries Ltd. case, no penalty should be imposed. The learned advocate highlighted that the penalty under section 76 was Rs. 1,38,197, exceeding the maximum penalty equal to the confirmed service tax amount. The judicial member agreed with the advocate's argument, noting that the service tax and interest were already paid, leading to the dispensation of the pre-deposit of the penalty amount.

3. The judicial member observed that the Commissioner (Appeals) had dismissed the appeal due to non-compliance with a stay order requiring a deposit of Rs. 50,000. Since the pre-deposit of penalty was waived, the member set aside the order and remanded the matter to the Commissioner for fresh consideration, aligning with the law in the Reliance Industries Ltd. case without insisting on any pre-deposit. The stay petition and appeal were disposed of accordingly.

This judgment from the Appellate Tribunal CESTAT, Ahmedabad, clarified the applicability of service tax rates, addressed the imposition of penalties under section 76, and emphasized compliance with pre-deposit conditions set by authorities, providing a detailed analysis and resolution for each issue raised in the case.