2018 (5) TMI 672 - AT - Service Tax

Tribunal rules in favor of IT service provider on tax dispute, grants penalty waiver

The Tribunal ruled in favor of the appellant, an IT-enabled service provider, in a case involving non-payment of service tax under the reverse charge ... 100% EOU - Penalty u/s 76 and 78 - service tax along with interest paid before issuance of SCN - revenue neutrality - Held that: - It is a fact that the appellant is 100% export oriented service provider. In such case, whatever the input service suffered the service tax, the said service tax is refundable u/r 5 of the CCR 2004. Therefore, even though, had the appellant paid the service tax in time, they would have got the refund of the same from the department. Therefore, neither any gain or loss either to the department or to the assessee. The allegation of intention to evade payment of service tax cannot be made against the appellant, which is the essential ingredient for imposing penalty - penalty cannot be invoked. Appeal allowed - decided in favor of appellant. Issues:1. Allegation of not discharging service tax on payments made in foreign currency under reverse charge mechanism.2. Imposition of penalty under Section 76 and 78 of the Finance Act, 1994.3. Contesting the intention to evade service tax payment.4. Applicability of Rule 3(ii) of the Taxation of Services Rules, 2006.5. Export-oriented service provider status and revenue neutrality.6. Invocation of Section 80 of the Finance Act for penalty waiver.Analysis:1. The appellant, engaged in IT-enabled services, received hosting and networking services from a foreign company, failing to pay service tax under reverse charge mechanism. The adjudicating authority confirmed the demand, interest, and penalties under Section 76 and 78. The Commissioner (Appeals) upheld the order, except for a demand beyond the time limit, leading to the current appeal.2. The appellant contested only the penalty imposition, acknowledging the service tax liability. The appellant believed services from abroad were not taxable under Rule 3(ii) of the Taxation of Services Rules, 2006. The appellant, being an export-oriented service provider, sought penalty waiver under Section 80, citing revenue neutrality and no intent to evade taxes.3. The Revenue argued that the services were taxable under the reverse charge mechanism, emphasizing the appellant's failure to declare the taxable service value in their return. They asserted an intent to evade service tax, justifying the penalties under Sections 76 and 78.4. The Tribunal noted the appellant's payment of service tax and interest before the show cause notice, highlighting their export-oriented status. The Tribunal considered the appellant's eligibility for refund under Rule 5 of the Cenvat Credit Rules, 2004, leading to revenue neutrality. Citing relevant case laws, the Tribunal found no intent to evade taxes, warranting penalty waiver under Section 80.5. Relying on precedents like JPB Mills Pvt. Ltd. and Gujarat Borosil Ltd., the Tribunal concluded that the appellant's case demonstrated revenue neutrality, justifying the waiver of penalties under Sections 76 and 78. The Tribunal modified the impugned order, allowing the appeal and setting aside the penalties.6. In conclusion, the Tribunal held that the appellant's case aligned with the provisions of Section 73(3) of the Finance Act, 1994, and waived the penalties imposed under Section 76 and 78 by invoking Section 80. The judgment favored the appellant, emphasizing their lack of mala fide intent to evade service tax, ultimately allowing the appeal.