2018 (11) TMI 1089 - AT - Service Tax

Penalty u/s 78 of FA - non-payment of service tax - Business Auxiliary Service - Commission received - Held that - The issue was interpretational that the appellant has failed to discharge service tax only because they entertained a bona fide doubt as to the taxable nature of the activity. Since the appellant has paid the entire demand along with interest and there being no evidence for suppression of facts, the penalty imposed under section 78 is unwarranted - penalty imposed under section 78 set aside without disturbing the demand or interest thereon - appeal allowed in part.

Summary

Issues:
Imposition of penalties under Sections 77 and 78 for service tax demand on commission received by the appellant from M/s. Amway under Business Auxiliary Service.

Analysis:
The appellant, a dealer and distribution agent for M/s. Amway India Enterprises, received a show-cause notice demanding service tax on the commission received from M/s. Amway under Business Auxiliary Service for the period from May 2006 to July 2008. A demand of ?3,15,464/- along with interest and penalties under Sections 76, 77, and 78 was proposed. The adjudicating authority confirmed the tax demand and penalties through an Order-in-Original. The appellant appealed to the Commissioner (Appeals), who upheld the lower authority's decision. The appellant then appealed to the CESTAT Chennai.

During the appeal, the appellant argued that there was a genuine doubt regarding the taxability of their activities, citing the judgment in Charanjeet Singh Kanuja Vs CST. The appellant contended that they had paid the entire service tax amount along with interest even before the show-cause notice was issued, demonstrating good faith. The appellant relied on the principle that when there is doubt in the mind of an assessee on a particular issue, the longer limitation period cannot be invoked, as established in the case of M/s. Continental Foundation Joint Venture Vs CCE, Chandigarh.

After considering the arguments from both sides, the CESTAT Chennai concluded that the penalty imposed under Section 78 was unwarranted. The tribunal found that the issue was interpretational, and the appellant's failure to discharge service tax was due to a bona fide doubt about the taxable nature of the activity. Since the appellant had paid the entire demand along with interest and there was no evidence of suppression of facts, the tribunal set aside the penalty imposed under Section 78. The impugned order was modified to exclude the penalty under Section 78 while maintaining the tax demand and interest. The appeal was partly allowed with consequential reliefs, if any.