Vide impugned order, the Commissioner (Appeals) has confirmed a demand of service tax of Rs.4,31,414/- along with interest and equivalent penalty under Section 76 of the Finance Act, 1944 and penalties under Section 77 of the Act. Aggrieved from the said order for imposing penalty, the appellant is before me.
2. The facts of the case are that the appellants are the exporter and during the course of export of goods, they have availed services from an agent located outside India to whom they are paying commission and as per reverse charge mechanism, they are required to pay service tax on commission paid to the agent who is located outside India. The appellant did not pay service tax for the period July-08 to Dec-08. As the appellant did not pay service tax for the impugned period, the Range Officer called for records and issued a SCN demanding service tax and imposing various penalties under the Finance Act, 1994. After issuance of the SCN, the appellant paid the service tax along with interest. The adjudicating authority confirmed the demand along with interest and the same has been appropriated. He further imposed penalty equivalent to the service tax demand under Section 76 and penalties under Section 77.
3. It is contended on behalf of the appellants that as the appellants are exporter, if they have paid the service tax, they have to file a refund claim and they have to receive back the service tax paid by them by way of refund. Therefore, as there was a situation of revenue-neutrality and due to business constraint, they could not deposit the service tax in time. It is also submitted that for the earlier period and the subsequent period, penalties have been dropped. Therefore, it is prayed that benefit of Section 80 of the Finance Act, 1994 be given and penalty be waived.
4. On the other hand, learned SDR, opposing the contention of the learned counsel, submitted that for the earlier period also the appellants paid service tax after issuance of the SCN on 5.1.2009. In this case also, the period is July-08 to Dec-08 and they did not pay service tax on their own. Therefore, benefit of Section 80 cannot be given. The adjudicating authority has rightly imposed the penalty on the appellants.
5. Heard and considered the submissions made by both sides.
6. Considering the fact that for the earlier period, the service tax was paid on 5.1.2009 and this Tribunal has dropped the penalty by invoking Section 80 of the Finance Act, 1994, in this case also, the appellant has paid service tax after issuance of the SCN in Nov-09 for subsequent SCNs they have paid service tax after issuance of the SCN in 2011 and in that case also, the Commissioner (Appeals) has dropped the penalty against which the Revenue is in appeal before this Tribunal. Further, I find that whatever service tax they have paid is available to the appellants as refund. In that situation, I invoke provisions of Section 80 of the Act and waive penalty under Section 76 against the appellant. With these terms, the appeal is disposed off.