2007 (12) TMI 195 - AT - Service Tax

Penalty imposed for delay in payment of tax and filing of returns delay of payment of tax and filing of return are due to interpretation of statutory provisions of law - Moreover Circular F. No. B.11/1/2002-TRU also clarified the matter in favour of assessee - In any event the appellant paid the tax before issue of the show cause notice. Thus the imposition of penalties are not warranted

Summary

Issues:
Imposition of penalty under Sections 76, 77, and 78 of the Finance Act, 1994 for cargo handling services.

Analysis:
The appellant, a proprietorship concern engaged in handling and transporting fertilizers, appealed against the imposition of penalties for late tax payment and non-filing of returns. The adjudicating authority upheld the demand of tax under "Cargo Handling Service," leading to penalties. The Commissioner (Appeals) affirmed this decision.

The appellant argued that they undertook loading and unloading activities individually and should not be taxed as a cargo handling agency, citing a Board Circular. They voluntarily paid the tax before receiving a show cause notice to avoid legal issues. The appellant's counsel referenced a Tribunal decision to support their case. The Departmental Representative contended that the appellant acted as an agency and thus fell under "Cargo Handling Operations."

Upon review, the Tribunal noted a dispute regarding the tax applicability for cargo handling services. Referring to a Central Board of Excise & Customs Circular, it clarified that individuals engaging in loading or unloading activities independently are not liable for service tax as a cargo handling agency. As the appellant was a proprietorship firm covered by the circular and had paid the tax before the notice, the penalties for late payment and non-filing of returns were deemed unwarranted. Consequently, the imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994 was set aside, and the appeal was allowed.