2019 (3) TMI 1049 - AT - Service Tax

Tribunal waives penalties under Section 78, upholds service tax demand. Distributors' genuine belief considered. Payment before notice key.

The tribunal partly allowed the appeal, setting aside penalties under Section 78 while upholding the demand for service tax, interest, and penalty under ... Penalty u/s 78 of FA - Service tax on distribution of pre-paid sim cards paid before issuance of SCN - bonafide belief - Held that:- The appellant have paid the major amount of service tax amount along with interest before issuance of SCN - It is a fact that various other distributors were also not paying service tax on the commission received towards sale of prepaid sim cards in Saurashtra area, this shows the bonafide of the appellant that non payment of service tax is not with intention to evade the service tax - penalties imposed under Section 78 set aside by invoking section 80 of the Finance Act 1994 - Demand of service tax and interest and penalty under 77 is maintained - appeal allowed in part. Issues:1. Service tax demand and penalty under sections 76, 77, and 78.2. Bonafide belief of distributors regarding non-payment of service tax on prepaid sim cards.3. Application of Section 80 to set aside penalty under Section 78.Analysis:The appellant, engaged in distributing Sim Cards supplied by Vodafone, received commission and initially paid service tax for a specific period. Following a departmental pointing out, they paid the outstanding service tax with interest. Subsequently, a show-cause notice was issued, leading to the confirmation of a demand along with penalties under sections 76, 77, and 78. The Commissioner (Appeals) upheld the demand and penalties under sections 77 and 78 but set aside the penalty under section 76. The appellant, dissatisfied, filed the present appeal challenging the penalties imposed.During the proceedings, the appellant's counsel conceded not contesting the demand but sought the setting aside of the penalty under Section 78 by invoking Section 80. It was argued that distributors in the Saurashtra area, including the appellant, believed in good faith that service tax was not applicable to the distribution of prepaid sim cards, indicating no malicious intent in non-payment of tax. The Revenue representative reiterated the findings of the impugned order.Upon careful review, the tribunal noted that the appellant had paid a significant portion of the service tax along with interest before the show-cause notice was issued. The tribunal acknowledged that several other distributors in the Saurashtra area also did not pay service tax on commission from prepaid sim card sales, indicating the genuine belief held by distributors regarding tax liability. Citing a precedent where penalty under section 78 was set aside in similar circumstances, the tribunal invoked Section 80 of the Finance Act 1994 to waive the penalties under Section 78. However, the demand for service tax and interest, along with the penalty under section 77, were upheld. Consequently, the appeal was partly allowed, setting aside penalties under Section 78 while maintaining the other aspects of the impugned order.This detailed analysis of the judgment addresses the issues of service tax demand, penalties under various sections, the bonafide belief of distributors, and the application of Section 80 to waive penalties under Section 78, providing a comprehensive understanding of the tribunal's decision in the case.