2013 (10) TMI 631 - AT - Service Tax

Difference in Profit and Loss Account and the amount of service tax return - Show cause notice issued - Held that - appellant, paid the difference service tax worked out by the Accountant Generals audit. Therefore as per the provisions of Section 73(3) of Finance Act 1994, if there was a difference, show-cause notice should have issue within one year. If show-cause notice has to be issued after one year, suppression or mis-declaration should have been invoked. Only on the ground that there is a difference in the income between Profit and Loss Account and the amount of service tax paid, a show-cause notice has been issued which in our opinion is not a sufficient ground. In any case the appellant during the hearing today submitted a statement of the taxable services rendered and amount payable by them and actually paid by them - appellant has paid an excess service tax of Rs. 27,013/- without taking into the appellant s claim regarding certain portion of the activities not attracting taxes at all - stay granted.

Issues:
1. Demand of service tax and penalties imposed on the appellant.
2. Discrepancy in service tax payment and subsequent show-cause notice.
3. Interpretation of Section 73(3) of Finance Act 1994 regarding issuance of show-cause notice.
4. Calculation of excess service tax paid by the appellant.
5. Consideration of waiver of pre-deposit and stay against recovery during appeal.

Issue 1: The judgment involves a demand for service tax of Rs. 74,65,740/- and penalties under Sections 77 and 78 imposed on the appellant. The audit revealed that the service tax paid was less than what was due, leading to the demand and penalties.

Issue 2: Following an audit of the appellant's branch, a discrepancy was found in the service tax payment. Despite the appellant promptly paying the calculated amount of Rs. 40,60,204/- after the audit pointed out the shortfall, a show-cause notice was issued proposing to demand the differential service tax of Rs. 74,65,740/-. The Tribunal noted detailed arguments presented by both sides regarding the accounting errors and the difference in income between the Profit and Loss Account and the actual service tax paid.

Issue 3: The Tribunal interpreted Section 73(3) of the Finance Act 1994, emphasizing that if there was a difference in service tax payment, a show-cause notice should have been issued within one year. The Tribunal found that the show-cause notice issued after more than one year was not justified solely based on the difference in income reported, without invoking suppression or mis-declaration.

Issue 4: The appellant submitted a detailed statement showing the calculation of taxable services rendered and the amount payable by them, revealing an excess service tax payment of Rs. 27,013/-. The Tribunal considered this excess payment, along with the appellant's claim regarding certain activities not attracting taxes, in determining the actual amount of service tax payable.

Issue 5: Since the appellant had paid the entire service tax amount, the Tribunal deemed it sufficient for the waiver of pre-deposit and granted a stay against recovery during the appeal process. This decision was made based on the appellant's full payment of the service tax demanded.

In conclusion, the judgment addressed various issues related to the demand for service tax, discrepancies in payment, interpretation of relevant legal provisions, calculation of excess tax paid, and the decision on waiver of pre-deposit and stay against recovery during the appeal. The Tribunal's analysis focused on the procedural and substantive aspects of the case to arrive at a fair and reasoned decision.

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