2016 (8) TMI 592 - AT - Service Tax

Levy of penalty - benefit of doubt Classification - rent-a-cab service tour operator service Held that - the revenue was not clear about category of services under which assessee can be taxed and that is why initially revenue issued a show cause notice under the category of tour operator services. Though there is observation of the Assistant Commissioner in the earlier order that the appellants services are properly classifiable under rent a cab services but by the time such observation was made by the adjudicating authority, the period under the present case had lapsed. The appellant was under the bonafide belief that there services may fall under different category or that may not be taxable at all as they were not admittedly covered under the tour operator services. Benefit of doubt extended to assesse penalty set aside. Appeal allowed decided in favor of appellant.

Summary

Issues:
Service tax demand confirmation under the category of rent a cab, imposition of penalty under section 76 of the Finance Act 1994.

Analysis:
The case involved a dispute regarding the classification of services provided by the appellant for the transportation of employees. The lower authorities confirmed a service tax demand, interest, and imposed a penalty under section 76 of the Finance Act 1994, categorizing the services as falling under the rent a cab category for the period April 2011 to March 2012.

The appellant contended that they initially received a show cause notice for tour operator services for the period October 2009 to September 2010, which was later vacated by the Assistant Commissioner. Despite subsequent show cause notices issued for the period in question, the appellant argued that they continued to provide services without payment of service tax under any category until the issuance of a notice in October 2011. The appellant had already paid the entire service tax demand and interest but challenged the imposition of penalty on the grounds of bonafide belief.

The Revenue argued that the earlier proceedings were dropped on technical grounds, but it was observed that the services provided by the appellant could fall under rent a cab services. However, it was acknowledged that by the time this observation was made, the period under consideration had ended.

The Member (Judicial) noted that the only challenge was regarding the imposition of penalty based on bonafide belief. Considering the uncertainty around the classification of services and the timing of the observations by the Assistant Commissioner, it was concluded that the appellant was under a bonafide belief that their services might fall under a different category or might not be taxable at all. Therefore, the penalty imposed was set aside while confirming the demand and interest, as they were not challenged.

In conclusion, the appeal was allowed to the extent of setting aside the penalty while confirming the demand and interest.