2013 (4) TMI 165 - AT - Service Tax

Penalty - Waiver u/s 80 - GTA Service - It is the contention of the appellants that they were under the bona fide belief that as the Notification No.32/2004-ST they are entitled for exemption and therefore they are not liable to pay service tax. - Further the service tax is paid by them is available as credit. Held that - In the case in hand whatever the service tax is paid by the appellant is available as credit. Therefore, in that scenario Section 80 of the Finance Act 1994 is applicable to the facts of the case. Therefore, by giving the benefit Section 80 of the Finance Act 1994 tribunal hold that penalty is not imposable on the appellant. - Penalty waived - Decided in favor of assessee.

Issues involved:
Appeal against penalty imposed under the Finance Act, 1994 for non-payment of service tax on inward and outward services in respect of transport of goods by road. Contention regarding bona fide belief in entitlement for exemption under Notification No.32/2004-ST and availability of service tax credit. Imposition of penalty under Section 78 challenged. Interpretation of Section 80 of the Finance Act, 1994 regarding the imposition of penalties in cases of reasonable cause for failure to pay service tax.

Analysis:

The appellants, engaged in the manufacture of Dolomite and Lime powder, were found liable for service tax on transport of goods by road under the Service Tax Rules. Upon non-payment of service tax, a show cause notice was issued, resulting in confirmation of the demand along with interest and penalties under various sections of the Finance Act. The Tribunal remitted the matter back to consider the benefit of Notification No.32/2004-ST, providing a 75% abatement if certain conditions were met. The demand was reduced upon granting the benefit of the Notification, but the penalty under Section 78 was upheld. The appellants contended that they believed in good faith that they were exempt under the Notification and had paid service tax available as credit, thus challenging the penalty imposed.

During the hearing, the appellants argued for the non-imposition of penalty based on their bona fide belief in the exemption and availability of service tax credit, citing a Tribunal decision in support. The Department Representative opposed this, asserting that the appellants' actions did not qualify for the benefit of Section 80 of the Finance Act, 1994, and referred to various decisions to support their stance. The Tribunal considered both arguments and examined the provisions of Section 80 of the Finance Act, 1994, which states that penalties are not imposable if there was a reasonable cause for the failure to pay service tax.

The Tribunal differentiated the cases cited by the Department Representative, noting that they pertained to different Acts and circumstances. It highlighted that in the present case, the appellants had paid the service tax, which was available as credit, distinguishing it from the cases where deliberate violations or non-disclosures were observed. By applying Section 80 of the Finance Act, 1994, the Tribunal held that the penalty was not imposable on the appellants due to the reasonable cause for their failure to pay service tax. Consequently, the impugned order was modified to drop the penalty against the appellants, and the appeal was disposed of accordingly.

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