2013 (12) TMI 152 - AT - Service Tax

Failure to file return - Port Service - Willful suppression of facts with intent to evade payment of tax - Held that - adjudicating authority has clearly recorded that the petitioner was fully aware of its liability towards discharge of tax, that it had collected the entire tax from the client M/s. Kolkata Port Trust and had retained the amount with itself without remitting it to the Government; that only after detection of the evasion, some payments were made; that the statutory ST-3 Returns were never filed; and that all these circumstances cumulatively legitimate the inference of wilful suppression and contravention of the provisions of the Act with a view to evade remittance of tax - no infirmity whatsoever with the adjudication order, warranting grant of waiver of pre-deposit. On this premise,we reject the application for waiver and direct the petitioner/appellant to remit the entire adjudicated liability to the credit of Revenue within four weeks from today. In default, the appeal stands rejected for failure of pre-deposit, under the provisions of Section 35F of Central Excise Act, 1944 as applicable to the provisions of Finance Act, 1994 - stay denied.

Issues:
1. Alleged willful contravention of specified provisions of the Act by the petitioner.
2. Failure to file Returns and deposit service tax.
3. Alleged suppression of facts to evade tax payment.
4. Applicability of Sections 73(3) and 74(4) of the Act.
5. Assessment of liability by the adjudicating authority.
6. Rejection of waiver application and direction for remittance of adjudicated liability.

Analysis:
1. The appeal was filed against an adjudication order by the Commissioner of Service Tax, Kolkata, alleging willful contravention of Act provisions by the petitioner. The petitioner, a registrant for the taxable service "Port Service," was accused of not filing Returns and not depositing service tax totaling Rs. 1,83,77,213/- along with cesses for the period from November 2004 to March 2008. The extended period of limitation was invoked due to alleged willful suppression of facts to evade tax payment.

2. The material obtained from the service recipient revealed that the petitioner had collected significant amounts from the Kolkata Port Trust for Port Trust Services but failed to deposit the corresponding service tax to the Government. Despite some partial payments made during the investigation, substantial amounts remained unpaid, indicating non-compliance with tax obligations.

3. The adjudicating authority assessed the petitioner's liability for service tax during the relevant period and rejected the petitioner's claim for the benefit of Section 73(3) of the Act, which allows non-pursuit of further proceedings on depositing the liability before the show cause notice issuance. The authority emphasized the petitioner's awareness of tax liability, collection of tax amounts, non-remittance to the Government, absence of filed ST-3 Returns, and concluded that these actions supported the inference of willful suppression and contravention of Act provisions.

4. The Tribunal found no infirmity in the adjudication order justifying waiver of pre-deposit. Consequently, the application for waiver was rejected, and the petitioner was directed to remit the entire adjudicated liability to the Revenue within four weeks. Failure to comply would result in the rejection of the appeal for lack of pre-deposit, in accordance with the relevant provisions of the Act.

This detailed analysis of the judgment highlights the key issues, findings, and directives of the Appellate Tribunal, emphasizing the petitioner's alleged non-compliance with tax obligations and the consequent legal implications.

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