2017 (6) TMI 277 - AT - Service Tax

Penalties u/s 77 and 78 - bargain discounts given to the dealers were not included in the assessable value - Held that - the exemption from service tax had just been removed on the commission agent service in July, 2004 and the appellants were paying income tax on the basis of net commission fee after deducting bargain discounts, the plea of bonafide belief appears to be convincing. Their bonafides are also strengthened by the fact they paid entire short levy much before the issuance of SCN - penalties set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Imposition of penalties under Section 77 and Section 78 of the Finance Act, 1994.

Analysis:
The case involved the appellants, engaged in providing Business Auxiliary Services, who received commission for selling sugar on behalf of another company. They failed to register with the Service Tax Department and did not pay the required Service Tax. A show cause notice was issued demanding the unpaid tax along with interest and proposing penalties. The adjudicating authority confirmed the tax demand but did not impose penalties, citing the appellant's bonafide belief. However, on revision, the Commissioner imposed penalties under Section 77 and Section 78.

The appellant contested the penalties, arguing that they believed the bargain discounts given were not part of the assessable value for tax purposes. They also claimed that no evidence of suppression was presented by the Commissioner. The appellant relied on a High Court decision supporting their position.

Upon review, the Tribunal found that the penalties imposed lacked justification. The Commissioner had not provided a basis for penalty under Section 77, and the finding of suppression under Section 78 was unsupported by evidence. Considering the recent inclusion of Commission Agent Service in taxable services and the appellant's prompt payment of the short levy, their bonafide belief was deemed convincing.

The Tribunal referenced a High Court judgment emphasizing that penalties should not be imposed without evidence of fraud or suppression. As a result, the Tribunal set aside the Commissioner's order imposing penalties under Section 77 and Section 78, ruling in favor of the appellant.

Therefore, the appeal was allowed, and the penalties under Section 77 and Section 78 were deemed unsustainable and set aside.