2014 (2) TMI 754 - AT - Service Tax

Waiver of pre-deposit of Service Tax - Penalty u/s 77 & 78 - Demand of differential amount of Service Tax - Bar of limitation - Held that - appellant had been filing the Service Tax returns to the lower authorities regularly. The said Service Tax returns were scrutinized by the authorities on 17.01.2008, there was a demand of short payment of Rs.87,740/-, which was immediately replied and the clarification was given by the appellant on 15.02.2008. We find that the show cause notice is issued on 02.03.2010 without giving any reasoning why there is so much time gap between 15.02.2008 to 02.03.2010 to issue the show cause notice to the appellant. In our considered view, the appellant has discharged the Service Tax liability as per law understood by him. If the authorities were of the view that he should have discharged more Service Tax liability and short paid the same, they could have called for the records within the period of limitation - Stay granted.

Summary

Issues:
Demand of differential Service Tax amount based on eligibility for works contract services and notification benefit. Delay in issuing show cause notice leading to question of limitation.

Analysis:

Issue 1: Demand of differential Service Tax amount
The case involves a demand for a differential amount of Service Tax on the appellant for the period 16.06.2005 to 30.09.2007. The issue arises from the appellant allegedly availing an ineligible benefit of notification by discharging Service Tax liability on only 33% of the gross amount of bills. The appellant had been regularly filing Service Tax returns, which were scrutinized by authorities on 17.01.2008, resulting in a demand for short payment. However, the show cause notice was issued on 02.03.2010, raising questions about the delay in taking action. The Tribunal noted that the appellant had responded promptly to the demand and provided clarification. The Tribunal opined that the appellant had discharged the Service Tax liability as per their understanding of the law. The Tribunal found that the appellant had a strong case regarding the question of limitation, suggesting that authorities should have called for records within the limitation period if they believed more tax was due.

Issue 2: Delay in issuing show cause notice
The Tribunal highlighted the significant delay between the date the authorities raised the issue of short payment (15.02.2008) and the issuance of the show cause notice (02.03.2010). This delay raised concerns about the timing of the notice and its impact on the appellant's ability to respond effectively. The Tribunal emphasized that the appellant had promptly addressed the initial demand for short payment, indicating their willingness to cooperate with the authorities. The Tribunal considered the delay in issuing the show cause notice as a factor supporting the appellant's argument regarding the question of limitation.

In conclusion, the Appellate Tribunal CESTAT Ahmedabad allowed the application for waiver of pre-deposit of the amounts involved and stayed the recovery until the appeal's disposal. The judgment focused on the issues of demand for a differential Service Tax amount based on eligibility for works contract services and notification benefit, as well as the delay in issuing the show cause notice, emphasizing the appellant's compliance with the law and raising questions about the timing of the notice in relation to the limitation period.