2016 (12) TMI 930 - AT - Service Tax

Waiver of penalty u/s 80 - Banking and Financial services received from the banks located outside India in relation to External Commercial Borrowings (ECB) - Held that: - The appellant has paid the entire liability of service tax along with interest before the receipt of Show Cause Notice though in this regard a small amount of ₹ 24,732/- along with interest was paid by the appellant on 14.09.2010, for which the reason cited is the different rates of service tax as taken into account for calculation of tax liability for certain period. Further, the Department has not given any evidence that there were any mala fides regarding non-payment of service tax on the part of the appellant.

The appellant also cites the provisions of Section 80 of the Finance Act, 1994 stating that there was reasonable cause for non-payment of service tax in the matter. The facts of the present case are similar to the Tribunal’s decision in the case of Bharat Forge Ltd. Vs. CCE, Pune [2016 (1) TMI 260 - CESTAT MUMBAI], wherein it was held that The prompt payment of service tax even before the issue of show cause notice shows the genuineness of the appellant. It is a case of bonafide belief of the appellant that service tax was not payable. Even the interest was paid soon after the passing of the adjudication order. Most importantly, it is seen that whatever tax is paid by the appellant is available to them as Cenvat credit. In such a situation, being a big company, we are of the view that the appellant had no intention to avoid payment of service tax which would have been available to them as Cenvat credit and non payment would not result in any financial benefit.

The appellant has given the plea of revenue neutrality also saying that no mens rea or mala fide on their part, therefore no penalty is imposable on them.

The penalty imposed under Section 78 of the Act is hereby set aside. The impugned order is modified to the above extent - decided partly in favor of assessee.