2010 (5) TMI 515 - AT - Service Tax

Demand - Evasion of tax - The appellant has failed to produce the document with regard to their claim of affecting sales which were included in their taxable turnover - The Trading, Profit and Loss Account reflects that income attributed to Job work is Rs. 24,43,997 and to Trading Sale is Rs. 13,96,768 - The important point to discuss at this juncture would be whether to include the value of Trading Sale in the taxable value for the purpose of computation of Service Tax or not - Notification No. 12/2003-ST, dated 20-6-2003 clearly stipulates that exemption shall be available to the value of goods and material sold subject to documentary evidence of such sale being available - On examination of those documents, it is found that all the invoices enclosed pertains to the trading/sale by the appellant to various customers which are not the invoices for the services rendered to their customer - Accordingly, the appeal is disposed of by way of remand

Summary

Issues:
Appeal against confirmation of demand of Service Tax, interest, and penalties under sections 76, 77, and 78 of the Finance Act based on alleged suppression of income leading to evasion of service tax.

Analysis:
The case involved an appeal challenging the confirmation of demand of Service Tax, interest, and penalties against the appellant. The dispute arose from the alleged suppression of income by the appellant during the period from April 2002 to March 2003. The appellant's total gross income as per the Income-tax Return was Rs. 38,40,765, while the total turnover in the service tax return was reported as Rs. 24,43,997, indicating a discrepancy of Rs. 13,96,768. This difference was construed as an attempt to evade service tax through fraudulent means.

The Assistant Commissioner initially dropped the proceedings, attributing the amount in question to trading sales conducted by the appellant. However, upon revision, the Commissioner upheld the demand, interest, and penalties on the differential amount. Dissatisfied with this decision, the appellant filed an appeal before the Tribunal.

During the proceedings, the appellant failed to appear despite notice, while the Departmental Representative (DR) argued that the demand was justified based on the income-tax return and the lack of documentary evidence supporting the appellant's claim of affected sales included in the taxable turnover. The DR contended that without proper documentation, the appellant's assertion of selling material was unsustainable.

Upon careful examination of the record, the Tribunal noted the discrepancy in the treatment of trading sales in the taxable value for service tax computation. The Tribunal referred to Notification No. 12/2003-ST, which exempted the value of goods and material sold subject to the availability of documentary evidence. The Tribunal found that the appellant had indeed sold photo printing paper for Rs. 13,96,768, substantiated by the Trading, Profit and Loss Account, and therefore, this amount should not be included in the taxable services' value.

The Tribunal also observed discrepancies in the appellant's ledger accounts and the lack of documentary support for the claimed sale of material. Consequently, the Tribunal remanded the matter back to the Commissioner for further examination of the invoices and ledger accounts to determine the actual amount of taxable services. The appellant was directed to produce the necessary documents to substantiate their claims for verification. Ultimately, the appeal was allowed by way of remand for the Commissioner to make a decision based on the additional evidence to be provided by the appellant.