2017 (4) TMI 590 - AT - Service Tax

Penalty u/s 78 of the FA, 1994 - Upon issuance of SCN, the appellant had paid the service tax attributable to the GTA service along with interest, the prayer of the appellant in this case is that since there is no element of mens rea in defrauding the Government revenue, penalty cannot be imposed - Held that - Since the appellant is an exporter of manganese ore, on which no duty and tax is payable, there was scope for entertaining the bona fide belief that no service tax is payable on the GTA service as a recipient of such service - present case is not attributable to any fraud, collusion, wilful misstatement, suppression of facts, with intent to evade the tax - benefit of section 80 extended - appeal set aside - appeal allowed - decided in favor of assessee.

Summary

Issues:
1. Liability to pay service tax on goods transport agency (GTA) service under reverse charge mechanism.
2. Imposition of penalty under Section 78 of the Finance Act, 1994 for non-payment of service tax.

Analysis:

Issue 1: Liability to pay service tax on GTA service
The appellant, an exporter of manganese ore, availed the services of a goods transport agency for transportation. The Department contended that the appellant was liable to pay service tax on the GTA service under the reverse charge mechanism. The Assistant Commissioner confirmed the service tax demand and imposed a penalty. The appellant did not contest the service tax liability but argued that they believed export goods were not subject to duties and taxes, hence no service tax was due. The appellant promptly paid the service tax upon receiving the show cause notice. The Tribunal acknowledged that as an exporter of duty and tax-free goods, the appellant had a genuine belief that service tax was not applicable to them. Consequently, the Tribunal ruled in favor of the appellant, setting aside the penalty imposed under Section 78.

Issue 2: Imposition of penalty under Section 78
The appellant argued that since there was no intent to defraud the government revenue, the penalty under Section 78 should not apply. The appellant's consultant contended that the appellant's belief in the non-applicability of service tax on the GTA service was genuine and that they promptly paid the tax upon notification. The Tribunal agreed that the circumstances did not involve fraud, collusion, or intent to evade tax. Given the appellant's bona fide belief and timely payment upon notification, the Tribunal invoked Section 80 to waive the penalty under Section 78. Consequently, the penalty imposed was set aside, and the appeal was allowed only to the extent of penalty imposition.

In conclusion, the Tribunal ruled in favor of the appellant, considering their genuine belief and prompt payment of service tax upon notification. The penalty under Section 78 was set aside, and the appeal was allowed on the grounds of no fraudulent intent and the benefit of Section 80 being applicable in this case.