2018 (6) TMI 924 - AT - Service Tax

Penalties u/s 77 and 78 - GTA Service - non-payment of Service Tax - appellant had incurred certain expenditure towards outward transportation of finished goods to various buyers including the department of railway - Held that - Appellant is engaged in the excisable activity as well as payment of service tax on inward GTA. Being organized manufacturer it cannot be expected that they are not aware about the levy of service tax on outward transportation. There is no different law for levy of service tax on GTA either it is inward transportation or outward transportation levy of service tax on GTA is under common law. Therefore contention of the appellant that being outward transportation they were under bonafide belief that the service tax payable by the recipient of the goods has no force. The appellant could not make out the case of reasonable cause for non payment of service tax on outward transportation - penalties upheld - appeal dismissed - decided against appellant.

Summary

Issues:
1. Appellant's liability for service tax on outward transportation.
2. Imposition of penalties under Sections 77 and 78 of the Finance Act.
3. Appellant's claim for waiver of penalty invoking Section 80.

Analysis:

Issue 1: Appellant's liability for service tax on outward transportation
The appellant, engaged in manufacturing dutiable final products, had service tax registration under the category of 'Goods Transport Agency.' During an audit, it was discovered that the appellant had not paid service tax on outward transportation of finished goods. The appellant argued that they believed the recipient of the goods was responsible for the service tax on outward transportation. However, the tribunal held that as an organized manufacturer aware of service tax laws, the appellant should have known about the levy on outward transportation. The tribunal rejected the appellant's argument of bonafide belief and noted that the appellant did not declare the taxable value of outward transportation in their returns. Additionally, the tribunal dismissed the argument of revenue neutrality for Cenvat credit, stating that the credit was not admissible for outward transportation post an amendment in the definition of input service. Consequently, the tribunal upheld the liability of the appellant for service tax on outward transportation.

Issue 2: Imposition of penalties under Sections 77 and 78
The adjudicating authority had imposed penalties under Sections 77 and 78 of the Finance Act on the appellant for non-payment of service tax on outward transportation. The appellant appealed for the waiver of the penalty under Section 78. The tribunal considered both sides' submissions and found that the appellant failed to demonstrate a reasonable cause for non-payment of service tax on outward transportation. As a result, the tribunal upheld the penalties imposed under Sections 77 and 78, affirming the decision of the adjudicating authority.

Issue 3: Appellant's claim for waiver of penalty invoking Section 80
The appellant had filed an appeal seeking the waiver of the penalty imposed under Section 78 by invoking Section 80. However, the tribunal, after careful consideration of the facts and arguments presented, concluded that the appellant could not establish a reasonable cause for their non-payment of service tax on outward transportation. Consequently, the tribunal upheld the penalties under Sections 77 and 78, dismissing the appeal filed by the appellant.

In conclusion, the tribunal upheld the liability of the appellant for service tax on outward transportation, affirmed the imposition of penalties under Sections 77 and 78, and rejected the appellant's claim for waiver of penalty under Section 80.