2019 (4) TMI 1463 - AT - Service Tax

Demand of Interest and penalty - non-payment of service tax - service tax paid before adjudication proceedings - goods transport Agency subject matter under dispute during relevant time - revenue neutrality - HELD THAT - There was no deliberate suppression of fact by the appellant in this case. In fact, the Audit detected the case is non payment of service tax on the basis of records maintained by the appellant. This transaction of non payment of service tax was duly reflected in their books of account. In such a situation it has been held by the Hon ble Tribunal that no suppression of fact can be alleged. There is no justification of imposition of any penalty or interest, relying upon the decision in the case of M/S. NANDGANJ SIHORI SUGAR CO. VERSUS CCE. LUCKNOW 2014 (5) TMI 138 - CESTAT NEW DELHI - also, as whole exercise is revenue neutral and accordingly there is no scope of levy of any penalty. The impugned regarding penalty and interest and order is set aside - As the payment of Service Tax is not contested the same is upheld - appeal allowed in part.

Summary

Issues:
Appeal against imposition of penalty and interest on service tax already paid before adjudication.

Analysis:
The appellant, engaged in manufacturing, received services from Goods Transport Agency and Goods Transport Owners. Audit revealed non-payment of service tax on services from the latter. Appellant paid the tax, but subsequent show cause notices led to penalties and interest imposed by the adjudicating authorities. Appellant contended that they paid tax in good faith under the reverse charge mechanism, citing precedents like Nandganj Sihori Sugar Co. Ltd. vs. CCE. Arguments included reliance on judgments like Birla Ready Mix vs. CCE and Bellary Iron & Ores Pvt Ltd. vs. CCE to support their position. The appellant emphasized the ambiguity in taxability, referring to Shree Balaji Transport vs. CCE, and argued against the imposition of interest and penalty due to the absence of mens rea, supported by Mentha and Allied Products vs. CCE. They also highlighted revenue-neutral situations based on rulings like Jet Airways India Ltd. vs. CGT and Anglo French Textile vs. CCE.

The appellant further relied on cases such as CCE vs. Siddheswar Textile Mills Pvt. Ltd. and CC vs. Textile Corp. Marathwada Ltd. to argue against interest levies in revenue-neutral scenarios. Citing Nirlon Ltd. vs. CCE, the appellant contended that penalties should not apply in such situations. They also referenced a CBEC Circular and legal provisions to support their argument against penalty imposition. The appellant sought relief from the imposed penalties and interest, emphasizing the absence of deliberate evasion and the revenue-neutral nature of the transactions.

The respondent, however, referred to a Tribunal order in M/s SL Mining Industries Ltd. vs. Commissioner of Central Excise, Bhubaneshwar, supported by a judgment of the Madras High Court, to argue for the levy of service tax on the appellant. The respondent contested the appellant's arguments, asserting that the penalties and interest were justified due to the audit objection revealing the non-payment of service tax, which would have continued without detection. The respondent emphasized the settlement post-clarification by the CBEC and the differing views within the Tribunal on service tax liability. The respondent argued that the penalties and interest were warranted as per the Finance Act, 1994.

Ultimately, the Tribunal found in favor of the appellant, setting aside the penalties and interest while upholding the payment of service tax. The decision was based on the lack of deliberate suppression of facts by the appellant, the revenue-neutral nature of the transactions, and the absence of justification for imposing penalties and interest. The Tribunal's ruling aligned with the appellant's arguments and the legal precedents cited, leading to the partial allowance of the appeals.