2017 (6) TMI 1069 - AT - Service Tax

Penalty u/s 78 of FA - purchase commission paid to the overseas agent - reverse charge mechanism - Held that - before initiation of show cause proceedings, the appellant had deposited the Service Tax along with interest attributable to services received by it from the overseas service provider - The issue as to whether service tax was liable on the recipient of service was contentious one - it cannot be said that appellant was involved in the activities concerning fraud, collusion, suppression etc., with intent to evade payment of service tax. Therefore, imposition of penalty u/s 78 ibid can be set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Imposition of penalty under Section 78 of the Finance Act, 1994 on the appellant for non-payment of Service Tax under reverse charge mechanism.

Analysis:
The case involved the appellant, engaged in manufacturing decorative veneers, who entered into an agreement with an overseas agent for sourcing raw materials. The Service Tax department contended that the appellant was liable to pay Service Tax on the purchase commission to the overseas agent under the reverse charge mechanism. The appellant, upon audit, deposited the Service Tax along with interest as the service recipient. The department then sought to impose a penalty under Section 78 of the Finance Act, 1994. The appellant argued that the payment under reverse charge was contentious and referenced a Bombay High Court judgment to support their position. They contended that penalty cannot be imposed without elements of suppression or misstatement and since it was a revenue-neutral situation due to cenvat credit availability, penalty should not be imposed.

The Tribunal, after hearing both parties and examining the records, noted that the appellant had paid the Service Tax and interest before the show cause proceedings commenced. The Tribunal acknowledged the contentious nature of the service tax liability on the recipient, which was resolved by the Bombay High Court judgment referenced by the appellant. It was observed that the appellant was not involved in fraudulent activities to evade tax payment. Relying on previous Tribunal decisions in similar cases, the Tribunal concluded that penalty under Section 78 could be set aside in this instance. Consequently, the Tribunal found no merit in the imposition of the penalty on the appellant and allowed the appeal in favor of the appellant by setting aside the penalty confirmed in the impugned order.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the penalty imposed under Section 78 of the Finance Act, 1994, due to the contentious nature of the service tax liability, absence of fraudulent intent, and precedents of similar cases where penalties were overturned.