2014 (12) TMI 549 - AT - Service Tax

Appeal partly allowed with waiver under section 76; penalty upheld under section 77. Bona fide belief recognized.

PADMASHRI DR DY PATIL SSK LTD. Versus COMMISSIONER OF CENTRAL EXCISE, KOLHAPUR

The appeal was partly allowed, with the waiver of penalty under section 76 and the upholding of the penalty under section 77. The Appellant's bona fide ... Penalty u/s 76 & 77 - service tax on GTA - Held that:- GTA service on which service tax demand was raised is related to export of goods, hence the bona fide belief of the Appellant is established. The Appellant admittedly paid the entire service tax before issuance of show cause notice. They are in any case entitled to Cenvat credit in respect of service tax on GTA being related to export of goods in the light of Hon'ble Gujarat High Court judgment in Inductotherm India P. Ltd. case cited [2014 (3) TMI 921 - GUJARAT HIGH COURT]. Service of GTA is in respect of export, hence the Appellant is entitled for Cenvat credit in respect of service tax paid on GTA for export goods. Therefore the service tax demanded by the revenue was admissible Cenvat credit and it is clear case of revenue neutrality. No reason for imposition of penalty on the Appellant under Section 76, hence the same is waived - However, penalty u/s 77 is upheld - Decided partly in favour of assessee. Issues:- Imposition of penalties under section 76 and 77 of the Finance Act, 1994.- Non-payment of service tax on GTA service for transportation of goods meant for export.- Appeal against penalties upheld by Commissioner of Central Excise (Appeals).- Arguments regarding bona fide belief, payment of service tax, and Cenvat credit entitlement.- Interpretation of relevant legal judgments supporting Cenvat credit for service tax on GTA for export goods.- Decision on waiver of penalties under Section 76 and imposition of penalty under Section 77.Analysis:1. The Appellant appealed against the imposition of penalties under sections 76 and 77 of the Finance Act, 1994, by the Commissioner of Central Excise (Appeals), Pune-II. The appeal focused solely on seeking relief from the penalties, not disputing the demand of service tax already paid by the Appellant before the show cause notice was issued.2. The case revolved around the Appellant's failure to pay service tax on GTA service for transporting goods meant for export up to the port or railways. The initial show cause notice proposed a demand for service tax, interest, and penalties under various sections of the Finance Act. The Commissioner (Appeals) dropped the penalty under section 78 but maintained penalties under sections 76 and 77, leading to the Appellant's appeal seeking relief only from the penalties.3. The Appellant argued that their non-payment of service tax on GTA service for export goods was based on a bona fide belief that such services were not taxable. They highlighted that service tax, along with interest, was paid before the show cause notice. Additionally, they claimed entitlement to Cenvat credit for input services related to export goods, citing legal precedents supporting their position and emphasizing revenue neutrality as a reason for waiving penalties.4. The Revenue, represented by the Assistant Commissioner, supported the findings of the Commissioner (Appeals). They contended that no mens rea was necessary for imposing penalty under section 76 and that the penalty under section 77 was justified due to the Appellant's failure to file the ST-3 return for non-payment of service tax.5. Upon considering both arguments, the judge observed that the GTA service in question was related to export goods, establishing the Appellant's bona fide belief. Citing legal judgments, the judge affirmed the Appellant's entitlement to Cenvat credit for service tax on GTA for export goods, leading to a conclusion of revenue neutrality and the waiver of penalty under section 76.6. However, regarding the penalty of Rs. 1000 under section 77, the judge upheld it due to the Appellant's violation of the statutory provision related to filing the ST-3 return for unpaid service tax within the stipulated time. The appeal was partly allowed, with the waiver of penalty under section 76 and the upholding of the penalty under section 77.This detailed analysis of the judgment showcases the legal intricacies involved in the case and the reasoning behind the decision regarding the imposition and waiver of penalties under the Finance Act, 1994.