2010 (5) TMI 182 - AT - Service Tax

Appeal partially allowed, penalty vacated under Finance Act. Company not liable for service tax.

The Tribunal partially allowed the appeal by M/s Rajahari Carriers & Finance Pvt Ltd., vacating the penalty under Section 76 of the Finance Act, 1994. ... GTA service - Scrutiny of ST-3 returns filed by the assessee revealed that it had declared nil turn over for the period from 1.1.2005 to 30.01.2006. After necessary investigation, a show cause notice was issued to the assessee proposing to recover service tax for the services under the category GTA rendered by the assessee during the material period. The assessee paid an amount of Rs 2,09,417/- on 22.06.2006 before issue of show cause notice on 14.09.2006 – Held that: - the assessee has not challenged the order of the Assistant Commissioner which found the assessee liable to pay service tax and also imposed penalty equal to the tax demanded on the assessee under Section 78 of the Act. - considerable merit in the submissions of the assessee that it had no malafide intention and the non-payment of tax had been occasioned due to its bonafide belief that the liability was on its customers, the appellants have not challenged the order the original authority - . The assessee itself claims to be a GTA. In the circumstances, I do not find it appropriate to interfere with the demand and the penalty imposed on the appellant by the original authority. Issues: Appeal against order imposing service tax, education cess, interest, and penalties under Sections 76 and 78 of the Finance Act, 1994.Analysis:1. Service Tax Liability and Penalties: The case involved an appeal by M/s Rajahari Carriers & Finance Pvt Ltd. against the order of the Assistant Commissioner of Central Excise, wherein a demand for service tax, education cess, interest, and penalties was confirmed. The company contested the liability to pay service tax, arguing that it was on the consignor or consignee, not on them as a goods transport agency (GTA). Despite their belief, the Assistant Commissioner imposed penalties under Section 78 of the Finance Act, 1994. The Commissioner, in a revision proceeding, upheld the penalties under Section 76. The Tribunal noted the company's bona fide belief but found no challenge to the original order. The Tribunal partially allowed the appeal, vacating the penalty under Section 76, as both authorities failed to prove fraud or willful misstatement by the company.2. Grounds of Appeal: In the appeal, M/s Rajahari Carriers & Finance Pvt Ltd. contended that they were not specified as persons responsible for paying service tax under the relevant rule. They argued against the penalties imposed under Sections 76 and 78, stating there was no mens rea or intentional conduct to evade payment. The company believed they were not liable for service tax, as the responsibility lay with the service users. They requested the impugned order to be set aside.3. Factual Background: The company was registered as a GTA and had declared nil turnover for a specific period. A show cause notice was issued for recovery of service tax, which the company contested, claiming the liability rested with consignors or consignees. They had paid a sum before the notice was issued. The Assistant Commissioner imposed penalties, which were upheld by the Commissioner in revision proceedings. The Tribunal noted the company's client base and their belief regarding service tax liability.4. Tribunal's Decision: The Tribunal found merit in the company's submissions regarding their belief about service tax liability. However, since the original order was not challenged, the demand and penalty were not interfered with. The Tribunal vacated the penalty under Section 76, as no evidence of fraud or willful misstatement was presented by the authorities. The appeal was partly allowed, and the penalty under Section 76 was set aside. The Tribunal disposed of the appeal accordingly.This detailed analysis of the legal judgment highlights the key issues, arguments presented, factual background, and the Tribunal's decision regarding the appeal against the imposition of service tax, education cess, interest, and penalties under Sections 76 and 78 of the Finance Act, 1994.