2017 (12) TMI 1202 - AT - Service Tax

Penalty - non-payment of service tax - case of appellant is that since the levy of service tax was not clear and the issue has been subject matter of disputes in many cases, therefore the Appellant could not pay service tax - Held that - the intention of the assessee towards non payment of service tax is whether due to dispute about levy or confusion has to be looked into by observing the facts of the each case - The demands of the extended period can be invoked only when there is ingredients of fraud, suppression or malafide intention on the part of the assessee for non-payment of tax. On the other hand the penalty can be waived only by taking recourse to section 80 of the Act. It is proper to remand the case to the adjudicating authority - appeal allowed by way of remand.

Issues:
1. Consideration of penalty against the Appellant in light of the Supreme Court's direction.
2. Allegation of "Business Auxiliary Service" activity and liability for service tax.
3. Dismissal of appeals by Tribunal and subsequent application for Rectification of mistake.
4. Appellant's submission regarding payment of taxes, penalty imposition, and interpretation of law.
5. Revenue's argument on non-payment of service tax and imposition of penalties.
6. Evaluation of facts and legal provisions by the Appellate Tribunal.

Analysis:
1. The appeal was taken up to consider the penalty against the Appellant as directed by the Hon'ble Supreme Court in a civil appeal. The Appellant, a dealer of M/s Maruti, was alleged to be involved in "Business Auxiliary Service," leading to a demand for service tax and penalties under sections 76 and 78 of the Finance Act, 1994. The adjudicating authority dropped some demands, but penalties were confirmed for a subsequent period.

2. Both the Appellant and the revenue appealed to the Tribunal, which dismissed their appeals. The Appellant then filed for Rectification of mistake, which was also dismissed. Subsequently, a Civil Appeal was filed before the Supreme Court, which remanded the matter back to the Tribunal solely for reevaluation of the penalty levied on the Appellant.

3. The Appellant's counsel argued that all taxes had been paid, citing a precedent where a demand was held to be time-barred. The Appellant focused on the penalty issue, contending that penalties under sections 76, 77, and 78 were arbitrary and should be set aside. They emphasized the lack of clarity on the levy of service tax and the presence of a bona fide belief that no tax was payable.

4. On the other hand, the revenue contended that since service tax was not paid, penalties were justified. The Appellate Tribunal considered both sides' submissions, emphasizing the need to examine the Appellant's intention regarding non-payment of service tax, especially in cases of dispute or confusion.

5. The Tribunal highlighted that penalties could be waived only if a reasonable cause for failure to pay service tax was established, as per Section 80 of the Act. Therefore, the case was remanded to the adjudicating authority for a thorough review, considering the facts, the Supreme Court's confirmation of demands, and the provisions of Section 80 to determine the imposition of penalties under sections 76 and 78.

6. The Adjudicating authority was directed to provide the Appellant with an opportunity to present submissions and be heard before making any decision on the penalty imposition. Ultimately, the matter was remitted back to the original authority for further proceedings, with the appeal being disposed of accordingly.

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