2012 (11) TMI 926 - AT - Service Tax

Business Auxiliary Services - demanding tax along with interest and penalty - assessee contested as he was a proprietorship firm - Held that - Considering Ministry s clarification Circular No. 80/10/2004-S.T., dated 17-9-2004, the contention of the assessee that during the relevant period there was no intention to levy tax on proprietary ship concern under the category of Business Auxiliary Service is acceptable. Thus setting aside the demand under this category & penalty u/s 77 also not maintainable because it is imposed for not taking registration under Business Auxiliary Service. Short payment of service tax under the category of Stock Broker Service due to a human error - Held that - Not in agreement with the argument that there was no suppression of information because in a computerized environment there is no scope of making a mistake of the type claimed and it is obvious that the value was mis -declared for paying tax. As decided in CCE vs. City Motors (2010 (2) TMI 297 - PUNJAB & HARYANA HIGH COURT) there is no case for imposing penalty under section 76 and section 78 in this type of cases. Thus appeal is partially allowed by setting aside demand to the extent of Rs.5601/- and also setting aside penalty under section 76 and 77 and reducing the penalty under section 78 to Rs.19153/-.

Summary

Issues:
1. Liability for service tax on sub-broker services and marketing of public issue of shares.
2. Disputed liability under Business Auxiliary Services.
3. Imposition of penalty under sections 76, 77, and 78.
4. Interpretation of Circular No. 80/10/2004-S.T. regarding taxable services.
5. Time-barred demand for tax under Business Auxiliary Services.
6. Justification for penalty imposition and applicability of separate penalties.

Detailed Analysis:
1. The Appellant, a stock broker, was found providing sub-broker services and marketing public issue shares without paying service tax. The liability under Business Auxiliary Services was disputed, leading to a Show Cause Notice for tax short payment, interest, and penalties.
2. The Appellant argued that the tax shortfall in Stock Broker Service was due to a human error, with no intention to evade tax. Regarding Business Auxiliary Services, they contended that as a proprietorship firm, they were not liable for tax under this category, citing Circular No. 80/10/2004-S.T. to support their position.
3. The imposition of penalties under sections 76, 77, and 78 was contested by the Appellant, claiming no justification for penalties and highlighting immediate payment of the tax liability for stock broker services.
4. The interpretation of Circular No. 80/10/2004-S.T. was crucial in determining the tax liability under Business Auxiliary Services, with the Tribunal agreeing that during the relevant period, no tax was intended to be levied on proprietary ship concerns under this category.
5. The Appellant argued that the demand for tax under Business Auxiliary Services was partially time-barred, considering their reliance on the Ministry's clarification.
6. The Tribunal considered arguments from both sides, noting the Kerala High Court's decision on separate penalties. Ultimately, the Tribunal set aside the demand for Business Auxiliary Services, penalty under section 76, and reduced the penalty under section 78, partially allowing the appeal.

This detailed analysis of the judgment addresses all the issues involved, including liability for service tax, disputed tax categories, penalty imposition, interpretation of relevant circulars, time-barred demands, and the Tribunal's final decision on each aspect of the case.