2012 (4) TMI 326 - HC - Service Tax

Co-operative Society rendering rent-a-cab service under the contract agreement - SCN was issued for the period from 1/4/2000 to 30/9/2004 for demand service tax with further penalty under section 75(A), 76, 77 and 78 Held that - the levy of service tax was w.e.f. 1/4/2000 on rent a cab service hence assessee may be unaware with regard to this new levy of tax - there was a confusion over applicability of this levy as appellant a cooperative society rendering under the Contract for many years - there were divergent views of different benches of Tribunal, which added appellant s confusion - if the appellant had persuaded their right of reimbursement of payment of service tax with the ONGC by way of conciliation and arbitration that fact can not negate them the defense of bona fide belief of applicability of service tax - the appellants were unable to pay the amount on the ground of dispute with the ONGC though they were aware of the levy of service tax in absence of any fraud, misrepresentation, collusion or willful mis-statement or suppression, there is no justification in levying the penalty in favour of assessee.

Issues Involved:
1. Whether the Tribunal failed to address submissions regarding the penalty.
2. Whether penalties can be imposed on a Co-operative Society when the levy is on commercial concerns.
3. Whether the Tribunal erred in imposing penalties without determining if the demand is barred by limitation.
4. Whether the Tribunal erred in not granting the benefit of Section 80 of the Finance Act, 1994 in the context of penalty imposition.

Detailed Analysis:

1. Tribunal's Failure to Address Submissions on Penalty:
The appellant argued that the Tribunal's order was unsustainable and unreasoned as it failed to address the submissions regarding the penalty. The appellant, a Co-operative Society providing rent-a-cab services to ONGC, was unaware of the new service tax levy effective from 1/4/2000. Upon receiving a letter from the department in 2001, the appellant faced a dispute with ONGC regarding the reimbursement of service tax, leading to delays in payment. Despite regular payments post-registration on 23/10/2002, the Deputy Commissioner issued a show cause notice for the recovery of Rs. 45,06,576/- for the period from 1/4/2000 to 30/9/2004, along with penalties and interest. The Tribunal imposed service tax and penalties for the entire period, which the appellant challenged, arguing that the duty had already been paid and the demand was barred by limitation.

2. Penalties on Co-operative Society:
The appellant contended that no penalty should be imposed on a Co-operative Society as the levy is on commercial concerns, and Co-operative Societies are not covered under the service tax head. The appellant claimed a bona fide belief that they were not liable to pay service tax due to their status as a Co-operative Society and the recent introduction of the levy. The Tribunal and Commissioner (Appeals) upheld the penalties, but the appellant argued that the penalties were unjustified given their bona fide belief and the absence of any suppression or intent to evade tax.

3. Imposing Penalties Without Determining Limitation Bar:
The appellant argued that the Tribunal erred in imposing penalties without determining whether the demand was barred by limitation. The appellant cited several cases to support their claim that the extended period of limitation should not apply in the absence of fraud, collusion, willful misstatement, or suppression. The court found that the appellant had a bona fide belief that they were not required to pay service tax, and the extended period of limitation was not applicable. The court noted that the appellant had informed the department about their activities and there was no suppression of fact or intent to evade tax.

4. Not Granting Benefit of Section 80 of the Finance Act, 1994:
The appellant argued that the Tribunal erred in not granting the benefit of Section 80 of the Finance Act, 1994, which provides relief from penalties if there is a reasonable cause for failure to pay service tax. The court found that the appellant's unawareness and confusion regarding the new levy, coupled with their status as a Co-operative Society of landowners who lost their lands to ONGC, constituted a reasonable cause. The court held that the penalties were not warranted given the bona fide belief and the absence of any fraud, misrepresentation, or suppression.

Conclusion:
The court quashed the Tribunal's order imposing the penalty of Rs. 16,57,321/- and the subsequent order dismissing the rectification application. The court answered the substantial questions of law (i), (iii), and (iv) in favor of the appellant, while question (ii) regarding the levy of service tax on rent-a-cab service was conceded and not in dispute. The appeal was allowed, and the penalties were set aside, with no order as to costs.

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