2008 (1) TMI 820 - Commissioner - Service Tax

Summary

Issues Involved:
1. Availment of Cenvat credit on improper documents.
2. Delayed payment of service tax and interest thereon.
3. Non-payment of service tax on interconnectivity usage charges.
4. Non-payment of service tax on initial/security deposits received from customers.

Issue-wise Detailed Analysis:

1. Availment of Cenvat credit on improper documents:
The assessee availed Cenvat credit of Rs. 58,32,295/- during October 2005 to March 2006. The credit was taken on the strength of "Advice of transfer (Debit note)" issued by the Accounts Officer of another BSNL circle, photocopies of documents, and documents not in the name of the assessee. The verification report confirmed that the documents were not proper as per Rule 9(1) of the Cenvat Credit Rules, 2004. Consequently, the credit availed was disallowed and ordered to be recovered under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 73 of the Finance Act, 1994. Interest on the disallowed credit was also ordered to be recovered under Section 75 of the Act. A penalty of Rs. 1,00,000/- was imposed under sub-rules (1) and (3) of Rule 15 of the Cenvat Credit Rules, 2004.

2. Delayed payment of service tax and interest thereon:
The assessee delayed the payment of service tax on offline collections, resulting in interest of Rs. 9,600/- for the period from April 2004 to February 2006. The assessee attributed the delay to genuine hardships such as data unavailability and staff shortage. However, the explanation was not accepted, and the interest was ordered to be recovered under Section 75 of the Finance Act, 1994.

3. Non-payment of service tax on interconnectivity usage charges:
The assessee did not pay service tax on interconnectivity usage charges amounting to Rs. 2,48,17,933/- for the period from July 2001 to March 2006. The assessee argued that these charges were part of a revenue-sharing arrangement and not subject to service tax. The Commissioner clarified that interconnection usage charges were not taxable under the category of telephone service prior to the enactment of the Finance Bill, 2007, as per Circular No. 91/2/2007-Service Tax dated 12-3-2007. Therefore, the demand for service tax on these charges was not maintainable and was dropped.

4. Non-payment of service tax on initial/security deposits received from customers:
The assessee received various deposits from customers, which were claimed to be refundable and not subject to service tax. The deposits included OYT, Non-OYT, Will deposit, Tatkal deposit, STDPT franchisee deposit, voluntary deposit, security deposit, and others. The Commissioner found that these deposits were not liable to service tax as they were refundable and not charged against any service. The demand for service tax on these deposits amounting to Rs. 2,68,04,767/- was dropped.

Order:
1. The Cenvat credit of Rs. 58,32,295/- availed on improper documents was disallowed and ordered to be recovered. Interest on the disallowed credit was also ordered to be recovered. A penalty of Rs. 1,00,000/- was imposed.
2. Interest of Rs. 9,600/- for delayed payment of service tax was ordered to be recovered.
3. The demand for service tax of Rs. 2,48,17,933/- on interconnectivity usage charges was dropped.
4. The demand for service tax of Rs. 2,68,04,767/- on initial/security deposits was dropped.

The Show Cause Notice No. 79/ST/COMMR/JBP/06, dated 10-10-2006, was disposed of accordingly.