2017 (12) TMI 770 - AT - Service Tax

Penalty u/s 78 - it was alleged that assesse had not paid service tax on reimbursement charges and have availed ineligible CENVAT credit - Held that - I find no infirmity in the impugned order whereby the Commissioner (A) has observed that there is no mens rea in the present case to suppress the facts and therefore, the Commissioner (A) has rightly observed that there is a reasonable cause for waiver of penalty by extending the benefit of Section 80 of the Finance Act, 1994, which was prevalent during the material point of time - appeal dismissed - decided against Revenue.

Summary

Issues: Revenue's appeal against dropping of penalty under Section 78 of the Finance Act, 1994 and Rule 15(3) of CENVAT Credit Rules, 2004 by the Commissioner (A).

Analysis:
1. The appeal was filed by the Revenue against the dropping of penalties under Section 78 of the Finance Act, 1994 and Rule 15(3) of CENVAT Credit Rules, 2004 by the Commissioner (A). The original authority confirmed the demand for non-payment of service tax on reimbursement charges and ineligible CENVAT credit, imposing penalties. The Commissioner (A) set aside the penalties by extending the benefit of Section 80 of the Finance Act, 1994. The Revenue contended that the assessee suppressed the value of taxable services by not including reimbursement charges in the returns.

2. The CA for the assessee argued that there was no mens rea on the part of the assessee and cited Section 67 of the Finance Act, 1994, stating that service tax is payable only on the amount charged for taxable services, not on reimbursements. Referring to a case law, it was argued that reimbursements are not liable to service tax, and the levy on reimbursement expenses was effective prospectively from May 14, 2015, through a budget.

3. The Tribunal found that the appeal was limited to the dropping of penalty under Section 78. It noted that the Commissioner (A) correctly observed the absence of mens rea to suppress facts, providing a reasonable cause for waiving the penalty under Section 80 of the Finance Act, 1994. The Commissioner (A) highlighted that the demands arose from an audit without evidence of intent to evade tax, leading to the waiver of the penalties under Section 78 and Rule 15(3) of CENVAT Credit Rules, 2004.

4. The Tribunal upheld the impugned order, emphasizing the absence of infirmity. It concurred with the Commissioner (A)'s decision to waive the penalties due to the lack of mens rea and the bona fide belief of the assessee. The Tribunal dismissed the Revenue's appeal, affirming the waiver of penalties under Section 78 and Rule 15(3) of CENVAT Credit Rules, 2004. The operative part of the order was pronounced on 13/11/2017.