2010 (5) TMI 217 - AT - Service Tax

Appellate Tribunal upholds dropping of penalties on service provider for non-payment of service tax

Commissioner of Central Excise, Nagpur Versus Shri Kamlesh Basekar

The appeal before the Appellate Tribunal CESTAT, Mumbai pertained to penalties imposed on the respondent under Sections 76, 77, and 78 of the Finance Act, ... Rent-a-Cab Scheme Operator Service- respondent was engaged in providing service relating the Rent A Cab Scheme Operator Service tax has been levied on the said service from 16.7.1997 and the respondent registered themselves on 13.3.2003. The respondent did not file any Service Tax-3 returns neither they have paid any service tax payable on the services rendered by them. Held that- counter the findings of the Commissioner (Appeals) mere saying that the ignorance of law is not an excuse, penalty should be imposable is not sustainable as the respondent has been able to give reasonable explanation for dropping the penalty. Hence, no reason to interfere with the impugned order, the same is upheld. Appeal filed the Revenue is rejected. Issues:Penalties imposed under Section 76, 77, and 78 of the Finance Act, 1994 dropped by exercising powers under Section 80 - Reasonable cause for failure to pay service tax - Applicability of penalty.Analysis:The appeal before the Appellate Tribunal CESTAT, Mumbai pertained to penalties imposed on the respondent that were dropped by exercising powers under Section 80 of the Finance Act, 1994. The respondent was engaged in providing services related to the Rent A Cab Scheme Operator and had not filed Service Tax-3 returns nor paid the service tax on the services rendered. The department detected that the respondent had provided taxable services to BSNL but failed to pay the service tax amounting to Rs. 1,11,630/-. A show-cause notice was issued, and penalties under Section 76, 77, and 78 of the Finance Act, 1994 were imposed. However, the penalties were dropped by the Commissioner (Appeals), leading to the appeal by the Revenue.The Revenue contended that the penalty should not have been dropped as the respondent failed to provide any reasonable cause for the non-payment of service tax. The Revenue argued that as per Section 80 of the Finance Act, penalties can only be dropped if the assessee proves a reasonable cause for the failure. Despite notice, no one appeared on behalf of the respondent during the proceedings.In the judgment, the Member (Judicial) analyzed the provisions of Section 80 of the Finance Act, 1994, which state that penalties shall not be imposed if the assessee proves a reasonable cause for the failure. The respondent, an uneducated person and a driver, provided services to BSNL without charging service tax, as he had not received any service tax from BSNL. The respondent explained that due to not receiving the service tax, he lacked funds to pay it and had to sell his wife's ornaments to comply with the payment. The Commissioner (Appeals) considered these factors as reasonable cause and dropped the penalties under Section 76, 77, and 78 of the Finance Act, 1994.The Member (Judicial) upheld the decision of the Commissioner (Appeals) and rejected the Revenue's appeal. It was concluded that the respondent had provided a reasonable explanation for not paying the service tax, and hence, there was no justification to interfere with the impugned order. The appeal filed by the Revenue was dismissed, and the decision was pronounced in court by Member (Judicial) Ashok Jindal.