2017 (8) TMI 1718 - AT - Service Tax

Extended period of limitation - Reverse charge mechanism under Section 66A of the Finance Act - revenue neutral situation - penalty - HELD THAT - The admitted fact is that the appellant was required to pay service tax on the services received from abroad under Section 66A of the Finance Act 1994. The appellant did not pay service tax thereon. The show cause notice has been issued by invoking extended period of limitation. Therefore it is required to be seen whether there was malafide intent of the appellant not to pay service tax. Admittedly whatever service tax paid by the appellant same is refundable in terms of Notification No. 41/2007 therefore the appellant is entitled for refund claim. In that circumstances the ingredient of malafide intention on the part of the appellant is missing. Thus it is a situation of neutrality. Therefore in that circumstances service tax cannot be demanded from the appellant. Accordingly the impugned order is set aside - thus no penalty is imposable on the appellant - appeal allowed.

Summary

Issues:
Appeal against demand of service tax under Section 66A of the Finance Act, 1994. Invocation of extended period of limitation for demanding service tax. Applicability of revenue neutral situation and cenvat credit entitlement. Liability of the appellant to pay service tax on services received from abroad.

Analysis:
The appellant, a manufacturer and exporter of excisable goods, appealed against the confirmation of service tax demand under Section 66A of the Finance Act, 1994. The demand was made for the period between 09.09.2008 to 07.07.2009, based on services availed from a service provider located outside India. The show cause notice was issued invoking the extended period of limitation. Both lower authorities confirmed the demand, along with interest and penalties. The appellant contended that the situation was revenue neutral as the service tax paid was refundable under Notification No. 41/2007, citing a Tribunal case as precedent.

The appellant argued that since the service tax paid was refundable and the appellant was entitled to cenvat credit, it was a revenue neutral situation. The appellant relied on a Tribunal case to support this claim. On the other hand, the Revenue opposed this argument, emphasizing the liability of the appellant to pay service tax, regardless of the entitlement to cenvat credit or refund. The Revenue contended that the appellant was required to pay the service tax and the extended period of limitation was rightly invoked.

After hearing both parties, the Tribunal observed that the appellant was indeed required to pay service tax under Section 66A of the Finance Act, 1994, for services received from abroad. However, the appellant had not paid the service tax, leading to the issuance of the show cause notice invoking the extended period of limitation. The Tribunal noted that the appellant's intent was not malicious, as the paid service tax was refundable as per Notification No. 41/2007. Relying on the precedent cited by the appellant and considering the revenue neutral situation, the Tribunal held that service tax could not be demanded from the appellant. Consequently, the impugned order was set aside, and the appeal was allowed, with no penalty imposed on the appellant.