2010 (5) TMI 302 - AT - Service Tax

Penalty - The appellant provides taxable service etc. to financial institutions and in turn receiving commission. Lower authorities raised Service Tax demand from assessee and imposed penalty u/s 78. Assessee submit that there was lot of confusion in regard to its liability to service tax which was settled by issue of Board s Circular No. 87/05/2006-S.T. dated 6.11.2006 and that even before issue of said Circular it had started paying service tax. Held that - it was a fit case for invoking section 80 and therefore penalty imposed u/s 78 was to be set aside.

Summary

Issues: Liability to pay service tax on incentive/commission received by the appellant, imposition of penalties under sections 77 and 78 of the Finance Act, 1994, invocation of section 80 of the Finance Act, 1994 for penalty waiver.

In this case, the appellant provided taxable services to financial institutions and received incentive/commission, failing to pay service tax on it. The appellate tribunal confirmed the service tax demand for a specific period and imposed penalties under sections 77 and 78 of the Finance Act, 1994. The appellant contended that they were unaware of the tax liability until informed by the department in 2005, and they promptly began paying the tax even before the issuance of clarifications by the Board. The appellant also highlighted financial difficulties as a reason for paying the tax in installments. The appellant claimed to have overpaid due to exemption before a certain date. The Departmental Representative argued that penalty under section 78 was mandatory and not subject to waiver under section 80 of the Finance Act, 1994.

Upon considering the submissions, the tribunal noted the proactive payment of tax by the appellant upon being informed by the department, even before the issuance of clarifications by the Board. The tribunal acknowledged the conflicting views that led to the issuance of a Circular by the Board in 2006. Additionally, the tribunal recognized that the appellant had overpaid due to exemption granted by the Commissioner (Appeals) for a period before 10-9-2004. Considering these factors, the tribunal deemed it appropriate to waive the penalty under section 78 by invoking the provisions of section 80 of the Finance Act, 1994. Consequently, the penalty equal to the service tax payable in the impugned order was set aside, while upholding the Commissioner (Appeals)'s decision on other issues.