2013 (8) TMI 374 - AT - Service Tax

Limitation period assessee provided the service of Pandal & Shamiyana Service and Mandap Keeper Service whether the notice is time barred and demand is not sustainable Held that - What is relevant is whether there was suppression of facts/ mis-declaration with an intention to evade duty on the part of the appellant - First Flight Courier Ltd. (2011 (1) TMI 52 - High Court of Punjab and Haryana) - once suppression or mis-declaration has proved - the extended period becomes invokable - irrespective of the date of knowledge of the department, the relevant date would be 5 years as per statute appeal decided against assessee.

Issues:
1. Short payment of service tax by the appellant.
2. Time limitation for issuing show-cause notice.
3. Imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994.
4. Applicability of High Court decisions regarding penalties.
5. Request for reduced penalty amount.

Issue 1: Short payment of service tax
The appellant was found to have collected excess amounts from customers but had not paid the corresponding service tax in full. The investigation revealed discrepancies in the invoicing where the actual amount collected was not reflected accurately, leading to a significant evasion of service tax. The Adjudicating Authority confirmed the short payment of service tax and imposed penalties under relevant sections of the Finance Act, 1994.

Issue 2: Time limitation for issuing show-cause notice
The appellant argued that the show-cause notice issued after a considerable delay was time-barred as all relevant facts were known to the revenue department earlier. The appellant contended that the notice should have been issued within one year of the investigation. However, the Tribunal held that the delay in issuing the notice did not invalidate the demand as suppression of facts and misdeclaration were evident.

Issue 3: Imposition of penalties under Sections 76, 77, and 78
The appellant challenged the imposition of penalties under Sections 76 and 78 of the Finance Act, 1994. The appellant cited decisions from different High Courts to support their contention that penalties could not be imposed. However, the Tribunal upheld the penalties, emphasizing the deliberate suppression of facts by the appellant and the applicability of the extended period for invoking penalties.

Issue 4: Applicability of High Court decisions regarding penalties
The Tribunal considered conflicting High Court decisions on the imposition of penalties under Sections 76 and 78. While the appellant relied on specific judgments to argue against the penalties, the Tribunal followed the latest decision of the High Court of Delhi, emphasizing judicial discipline in adhering to precedent. The Tribunal upheld the penalties based on the established legal principles.

Issue 5: Request for reduced penalty amount
The appellant requested a reduction in the penalty amount, citing a Tribunal decision in a similar case. The Tribunal reviewed the request and reduced the penalty under Section 78 of the Finance Act, 1994 to 100% of the service tax demanded, considering the financial difficulties faced by the appellant and the partial payment made before the issuance of the show-cause notice.

This judgment addresses the appellant's evasion of service tax through misdeclaration and suppression of facts, leading to short payment of taxes. It clarifies the time limitation for issuing show-cause notices, the imposition of penalties under relevant sections of the Finance Act, and the significance of High Court decisions in determining penalties. The Tribunal's decision emphasizes adherence to legal precedents, resulting in the reduction of the penalty amount based on the appellant's circumstances.

← Previous Next →