No interest and/ or penalty can be levied just because the Assessee had paid Service tax, which was actually not payable

Dear Professional Colleague,

No interest and/ or penalty can be levied just because the Assessee had paid Service tax, which was actually not payable

We are sharing with you an important judgment of Hon’ble High Court, Madras, in the case of Commissioner of Central Excise, Tirunelveli Vs. Sundaram Textiles Ltd. [(2015) 55 taxmann.com 242 (Madras)] on the following issue:

Issue:

Whether interest and/or penalty can be levy just because the Assessee had paid Service tax, which was actually not payable?

Facts & background:

Sundaram Textiles Ltd. (“the Respondent” or “the Company”) was running a Textile Industry in Nanguneri and used to receive Intellectual Property Service (“Impugned Service”) from Japanese Company. The Commissioner of Central Excise, Tirunelveli directed the Respondent to pay Service tax on the Impugned Service availed for the period 1999 to August 15, 2002 which was duly paid by the Respondent. Subsequently, a SCN was issued raising demand of interest as well as imposing penalty under Section 76 of the Finance Act, 1994 (“the Finance Act”) which was confirmed vide Order-in-Original  dated April 25, 2005.

Being aggrieved, the Respondent preferred an appeal before the Learned Commissioner (Appeals), wherein it was held that the amendment made in the Service Tax Rules providing for liability of service recipient under Reverse Charge mechanism came into effect only from August 16, 2002, hence, during relevant period, there was no liability to pay Service tax even though the Respondent was made to pay Service tax by the Department. Since the Respondent was not liable to pay Service tax, the question of interest and penalty does not arise.

Later the Hon’ble CESTAT, Chennai also upheld the Order of the Commissioner (Appeals). Being aggrieved the Department preferred an appeal before the Hon’ble High Court of Madras contending that since the Respondent has received services from a Foreign Company and paid Service tax also, therefore the Respondent is also liable for interest and penalty.

Held:

The Hon’ble High Court of Madras upheld the Order of the Hon’ble Tribunal and held that since amendment to the Service Tax Rules have come into effect on August 16, 2002 and it is only by way of amendment the liability of service recipient to pay Service tax on the Impugned Service arises otherwise there was no liability on the Respondent to pay Service tax during the period under dispute.

Since the Respondent was not liable to pay Service tax, the Respondent is also not liable to pay Interest as well as penalty.

Hope the information will assist you in your Professional endeavors. In case of any query/ information, please do not hesitate to write back to us.

Thanks & Best Regards,

Bimal Jain                   

FCA, FCS, LLB, B.Com (Hons)

Delhi:

Flat No. 34B, Ground Floor, Pocket - 1,

Mayur Vihar, Phase - I,

Email: bimaljain@hotmail.com

Web: www.a2ztaxcorp.com

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