2014 (3) TMI 338 - AT - Service Tax

Waiver of predeposit of service tax - short-payment of service tax on the basis of difference between the gross taxable value shown in the ST-3 Returns and receipts shown in the Balance Sheet - Penalty u/s 76, 77 & 78 - Burden of proof - Held that - the burden lies on the assessee to explain to the Department adducing proper evidences to justify that the differential receipts between the amount shown in the Balance Sheet and ST-3 Returns, are not related to taxable services - Applicants are not able to make a prima-facie case for total waiver of dues adjudged. Consequently, taking into consideration the financial hardship, interest of Revenue and principles laid down by disposing stay petition by the Hon ble Supreme Court and the Hon ble High Courts, we direct the Applicant to deposit 25% of the service tax within a period of eight weeks - Conditional stay granted.

Summary

Issues: Application for waiver of predeposit of service tax and penalties under various sections of the Finance Act, 1994.

Analysis:
1. The applicant sought waiver of predeposit of service tax amounting to Rs.44.56 lakhs and penalties imposed under different sections of the Finance Act, 1994. The advocate representing the applicant argued that the demand was based on discrepancies between the value shown in ST-3 Returns and the balance sheet, attributing the difference to non-taxable receipts during the period from 2004-05 to 2008-09. The Commissioner (Appeals) had dismissed the appeal due to non-compliance with the directed amount under Section 35F of the Central Excise Act, 1944. The advocate highlighted inconsistencies in the observations of the Adjudicating Authority regarding the submission of necessary work orders by the applicant.

2. The Department's representative contended that the initial service tax amount demanded was reduced after adjudication. The Adjudicating Authority had considered the work orders presented by the applicant and extended benefits accordingly. The representative argued that the entire order should not be deemed contrary solely based on the non-production of certain evidences or work orders related to services rendered. Both sides presented their arguments before the Tribunal.

3. Upon examining the records, the Tribunal observed that show-cause notices were issued to the applicant concerning the alleged short-payment of service tax due to differences between the gross taxable value in ST-3 Returns and the balance sheet receipts. The burden of proof lay on the assessee to justify that the differential receipts were not related to taxable services. The Tribunal found that the Adjudicating Authority had analyzed the documents and evidence, reaching a definitive conclusion on the service tax liability of the applicant. Despite the applicant's claim of financial hardship, the Tribunal determined that a prima-facie case for total waiver of dues was not established. Considering the financial constraints of the applicant, the interests of the Revenue, and legal precedents, the Tribunal directed the applicant to deposit 25% of the service tax within eight weeks, failing which the appeal would be dismissed without further notice. The balance amount of dues adjudged would be waived upon the deposit, and recovery stayed during the appeal's pendency. The stay petition was disposed of accordingly.