2019 (2) TMI 1299 - AT - Central Excise

Challenges in Service Tax & Penalties: Excess Payment, Interest, Penalty Sections 77 & 78

Nissan Motor India Private Ltd. Versus Commissioner of Service Tax, Chennai

Nissan Motor India Private Ltd. Versus Commissioner of Service Tax, Chennai - TMI Issues Involved:1. Exigibility of service tax on royalty payments.2. Applicability of interest on the tax liability.3. Imposition of penalties under Sections 77 and 78 of the Finance Act, 1994.4. Denial of Cenvat credit invoking Rule 9(1)(bb) of the Cenvat Credit Rules, 2004.5. Quantum of tax demanded and excess payment.Detailed Analysis:1. Exigibility of Service Tax on Royalty Payments:The appellants, engaged in manufacturing motor vehicles, had entered into a Manufacturing Licensing Agreement with Nissan Motor Co. Ltd., Japan, involving royalty payments for the use of trademarks and technical information. Investigations revealed that the appellants made provisions for royalty payments but did not discharge the service tax liability as a recipient of service. A show cause notice was issued demanding Rs. 6,21,24,362/- with interest and penalties. The Commissioner confirmed the demand, appropriated the amount paid by the appellant, and imposed penalties under Sections 77 and 78 of the Finance Act, 1994. The appellants contested the interest and penalty but not the tax liability.2. Applicability of Interest on the Tax Liability:The appellants argued that interest should not be levied as they had paid the tax liability before the issuance of the show cause notice. However, the Tribunal held that interest is leviable even if the tax is paid before the issuance of the notice. Section 73(3) of the Finance Act, 1994, mandates that interest under Section 75 is payable on the amount paid by the person under Section 73(3). Therefore, the Tribunal did not interfere with the interest liability.3. Imposition of Penalties under Sections 77 and 78 of the Finance Act, 1994:The Tribunal found merit in the appellants' contention regarding the penalty under Section 78. The tax demand primarily related to technical assistance fees, which, according to judicial precedents, did not attract service tax under Intellectual Property Service. The Tribunal noted that the appellants had made provisions in their books of accounts and paid the tax liability immediately upon being pointed out, indicating no intention to evade tax. Consequently, the penalty under Section 78 was set aside, but the penalty under Section 77 was upheld.4. Denial of Cenvat Credit Invoking Rule 9(1)(bb) of the Cenvat Credit Rules, 2004:The second show cause notice demanded recovery of allegedly wrongly availed credit of Rs. 6,21,24,362/- with interest and penalties, invoking Rule 9(1)(bb) of the Cenvat Credit Rules, 2004. The Tribunal held that the credit was availed under Rule 9(1)(e) since the tax amount was paid under reverse charge mechanism. The Tribunal relied on the decision in Essar Oil Ltd. Vs CCE Rajkot, which clarified that credit availed under reverse charge mechanism falls under Rule 9(1)(e) and not Rule 9(1)(bb). Therefore, the impugned order was set aside.5. Quantum of Tax Demanded and Excess Payment:The appellants contended that they had paid Rs. 42,02,460/- in excess of the demanded tax liability. The Tribunal acceded to the request for remand to rework the tax liability. The adjudicating authority was directed to examine the appellant’s contention regarding the excess payment.Conclusion:(A) In Appeal ST/42260/2013:1. The matter is remanded to examine the contention of excess payment of Rs. 42,02,460/-.2. Interest on the revised tax liability is to be paid by the appellants.3. Penalty under Section 78 is set aside.4. Penalty under Section 77 is upheld.5. Appeal partly allowed on these terms.(B) In Appeal E/42153/2014:1. The impugned order is set aside.2. Appeal allowed with consequential benefits as per law.