2011 (12) TMI 396 - AT - Service Tax

Availment of Cenvat Credit being the amount of Service Tax paid on Security Service received for the Cell Phone Towers - M/s. BSNL, a Public Sector Undertaking claimed before the revenue authorities that that they had reversed the wrongly taken credit and, they availed the Dispute Resolution Scheme of 2008 by paying unpaid interest amount Held that - During the Audit conducted for subsequent period M/s.BSNL have not produced documentary evidence to support their claim of reversal - M/s. BSNL fails to submit the proof of initial payment of the tax and reversal or fresh payment and submits that the Appellants Office in Trichy have clarified that since M/s. BSNL follows a Central Accounting System, it is not possible for them to reverse the wrongly taken credit - M/s.BSNL made a blatantly wrong claim under the Dispute Resolution Scheme sought by making payment of the interest amount alone amounts to fraud, duplicity and misstatement Confirm the demand of tax and imposition of equal penalty no warrant to impose additional penalty of ₹ 2,000

Summary

Issues:
1. Wrong availment of Cenvat Credit for Service Tax on Security Service received for Cell Phone Towers.
2. Failure to provide documentary evidence for reversal of wrongly availed credit.
3. Imposition of penalties under Sections 76, 77, and 78 of the Act.
4. Request for adjustment of demand from the refund due to the appellant.

Analysis:

Issue 1: Wrong Availment of Cenvat Credit
The original authority highlighted the issue of wrong availment of Cenvat Credit amounting to Rs.2,11,899 for Service Tax on Security Service received for Cell Phone Towers. It was noted that the service received was not directly related to the services provided by the appellant, leading to the demand for repayment of the wrongly availed credit.

Issue 2: Lack of Documentary Evidence
M/s. BSNL claimed to have reversed the wrongly taken credit and participated in the Dispute Resolution Scheme by paying the interest amount demanded. However, subsequent audit revealed the lack of documentary evidence to support this claim, indicating a failure to provide proof of reversal or fresh payment. The inability to produce such evidence raised doubts regarding the initial claim made by M/s. BSNL.

Issue 3: Imposition of Penalties
The original authority proposed penalties under Sections 76, 77, and 78 of the Act due to the false claim made by M/s. BSNL regarding the reversal of wrongly availed credit. The failure to maintain proper Cenvat Accounts also led to liability for penal action under Section 77 of the Act. The judgment upheld the imposition of penalties under Section 78 but set aside the additional penalty of Rs.2,000, emphasizing the seriousness of the false claim and the need for appropriate penalties.

Issue 4: Adjustment of Demand
M/s. BSNL requested to adjust the demand from the refund due to them, acknowledging the charges made in the show cause notice. The judgment highlighted the need to consider this adjustment only while issuing an order on their refund claim, indicating a specific process for addressing the financial aspect of the case.

In conclusion, the judgment emphasized the importance of substantiating claims with proper documentation, the consequences of making false claims under schemes, and the justification for imposing penalties in cases of fraud or misstatement. The decision highlighted the responsibility of public sector undertakings to uphold transparency and accuracy in financial matters, ultimately upholding the original authority's decision on the case.