2018 (7) TMI 1443 - AT - Service Tax

Waiver of penalties - non-payment of service tax under the head renting of immovable property service - issue was under dispute during relevant time - Held that - The liability for payment of service tax under the category of renting of immovable property service was the subject matter of several disputes and it came to be settled only with the decision of Hon ble Delhi High Court in the case of Home Solution Retail India Ltd. vs. Union of India 2009 (4) TMI 14 - DELHI HIGH COURT . Subsequent to the said decision, the retrospective amendment in the Finance Act, 2010 was carried out and the definition of the service was amended retrospectively w.e.f. 01/06/2007 - Since the liability to pay service tax itself was under challenge, the sustaining the penalties against the appellant could not be proper - appeal allowed - decided in favor of appellant.

Issues:
1. Appellant engaged in providing taxable services under renting of immovable property category.
2. Non-payment of service tax under said category leading to show cause notices.
3. Demand for service tax confirmed and penalties imposed.
4. Appellant's appeal for waiver of penalties based on retrospective amendment and payment of service tax and interest.
5. Dispute regarding penalties under various sections of Finance Act, 1994.
6. Applicability of penalties considering settlement of liability and legal challenges.

Analysis:
1. The appellant, engaged in providing taxable services under the renting of immovable property category, faced show cause notices for non-payment of service tax. The demand for service tax was confirmed, along with penalties, by lower authorities. The appeal sought waiver of penalties, citing the insertion of Section 80(2) by the Finance Act, 2012, and retrospective amendment of Section 65(105)(zzzz) by the Finance Act, 2010.
2. The appellant contended that penalties under Sections 76, 77, and 78 of the Finance Act would not be imposable if service tax due was deposited with interest within six months of the amendment. The issue of service tax under the renting of immovable property category had been a subject of disputes, leading to retrospective amendments. The appellant argued against malafide intention and requested penalties to be waived.
3. The Revenue, represented by the learned DR, emphasized that interest liability was not paid within the stipulated six months, justifying the imposition of penalties. However, after hearing both sides and reviewing the record, the Tribunal noted that the service tax liability was not disputed by the appellant, who had paid the entire demanded amount and interest.
4. The dispute primarily revolved around the penalties under various sections of the Finance Act, 1994. Given the legal challenges and settlement of the liability for service tax under the renting of immovable property category, the Tribunal found sustaining the penalties improper. Referring to a similar case precedent where penalties were set aside, the Tribunal upheld the service tax demand with interest while waiving the imposed penalties.
5. The Tribunal's decision was based on the legal scenario surrounding the service tax liability, which had been under challenge and subsequently settled through retrospective amendments. The waiver of penalties was contingent upon the appellant proving full payment of interest, as claimed, to the lower authorities. Ultimately, the appeal was allowed, with penalties waived, provided the interest payment was verified.

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