2016 (11) TMI 1353 - AT - Service Tax

Imposition of penalties u/s 76 and 77 of the FA, 1962 - taxability - reverse charge basis - As per facts on record, the appellant availed the services of foreign commission agent for procuring their orders from various Customers. With the insertion of section 66A in the Finance Act effective from 18.4.2006, the appellant was required to pay the service tax on such services, so received by them, on reverse charge basis - Held that - I find that whatever Service tax was required to be paid by the appellant, was available to them as cenvat credit. As such, the entire situation is revenue neutral, in which case, no malafide can be attributable to the appellant. Accordingly, I am of the view that imposition of penalty upon them are not justifiable. The same are accordingly, set aside while upholding the service tax and interest as not challenged - appeal allowed - decided in favor of assessee.

Issues:
Penalties imposed under section 76 and 77 of the Finance Act, 1994 for non-payment of service tax on services received from a foreign commission agent. Interpretation of legal obligation to pay service tax, bonafide belief, applicability of circular on service tax liability, invocation of section 80 for setting aside penalties.

Analysis:

1. Penalties Imposed Under Section 76 and 77:
The appellant availed services from a foreign commission agent, leading to a service tax liability under section 66A of the Finance Act. The appellant, despite being informed by Revenue, failed to discharge the service tax liability initially. However, they later deposited the service tax amount along with interest voluntarily. The challenge in the appeal was against the penalties imposed under sections 76 and 77. The original adjudicating authority and Commissioner (Appeals) upheld the penalties based on the legal obligation to pay service tax.

2. Bonafide Belief and Interpretation of Legal Obligation:
The appellant argued that they were under a bonafide belief that no service tax was required to be paid as they only received services from outside India and did not provide services. They referred to a Board's Circular stating that services provided beyond India's territorial waters are not liable to service tax. The appellant contended that this circular added to their bonafide belief. However, the Tribunal noted that the circular had been withdrawn and held that it could not justify the appellant's bonafide belief. The Tribunal considered the confusion in the field but emphasized that the appellant had a legal obligation to pay the service tax, which they eventually paid.

3. Invocation of Section 80 and Precedents:
The appellant cited various Tribunal decisions supporting the invocation of section 80 to set aside penalties. The Tribunal referred to the case of Needle Industries and CCE Ahmedabad vs. Sagar Enterprises, where penalties were set aside due to the absence of evidence showing an intention to evade tax. The Tribunal also mentioned a case where penalties were set aside by invoking section 80, emphasizing the importance of bonafide belief and lack of malafide intent.

4. Decision and Rationale:
After considering the arguments from both sides, the Tribunal found that the penalties imposed were not justifiable. The appellant had paid the service tax, and the situation was revenue-neutral as the appellant had cenvat credit available for the required payment. The Tribunal held that no malafide intent could be attributed to the appellant, leading to the setting aside of the penalties while upholding the service tax and interest payments. The appeals were disposed of accordingly.

This detailed analysis of the judgment highlights the key issues, legal interpretations, arguments presented, precedents cited, and the final decision reached by the Tribunal, providing a comprehensive understanding of the case.

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