2014 (4) TMI 638 - AT - Service Tax

Demand of service tax - Consulting Engineer s Service - Undervaluation - Held that - In the absence of documentary evidence, there cannot be any presumption in favour of the appellant that the consideration received was for other than the Consulting Engineers Service. In the Books of Account, the consideration received has been shown as income under Engineering Consultancy Service. Therefore, if the appellant wanted to claim exclusion of the consideration received for the purpose of levy of Service tax, it was their responsibility to show by way of documentary evidence that the consideration received was not by way of Engineering Consultancy but for other services rendered. As regards the penalty imposed under Section 78, Section 78 envisages imposition of penalty on account of fraud, collusion, suppression, willful mis-statement of facts and contravention of any of the provisions of the Act with an intent to evade payment of tax. If these elements are present, penalty can be imposed under Section 78. In the present case, the charge against the appellant is that in the Returns filed for the respective periods, the appellant did not disclose receipt of the consideration for the services rendered and that would clearly amount to willful mis-statement of facts. Therefore, penalty under Section 78 is correctly imposable on the appellant - Decided against assessee.

Summary

Issues:
1. Alleged evasion of Service Tax by the Appellant.
2. Invocation of extended period of time for demand confirmation.
3. Discrepancy in documentary evidence for different periods.
4. Imposition of penalties under Sections 76 and 78 of the Finance Act, 1994.
5. Appellant's plea for waiver of penalties based on payment made.

Issue 1: Alleged evasion of Service Tax by the Appellant

The judgment revolves around the allegation that the Appellant, a company engaged in Engineering Consultancy, evaded Service Tax on the consideration received. The investigation revealed a substantial amount received by the Appellant, leading to a demand notice for Service Tax, interest, and penalties. The Appellant contested the demand, arguing that certain receipts were not for Consulting Engineers Service but for other services like Export earnings and Works Contract Services. The adjudicating authority accepted this defense for some periods but upheld the demand for the year 2001-02 due to lack of documentary evidence.

Issue 2: Invocation of extended period of time for demand confirmation

The Appellant challenged the invocation of the extended period of time for confirming the demand for the year 2001-02, contending that since demands for subsequent periods were dropped, there was no basis for presuming tax evasion. The Revenue argued that the Appellant's failure to declare correct particulars in statutory returns constituted tax evasion, justifying the extended period. The Tribunal upheld the invocation of the extended period due to the Appellant's inability to provide documentary evidence for the year 2001-02, leading to the confirmation of the demand for that period.

Issue 3: Discrepancy in documentary evidence for different periods

The Tribunal highlighted the significance of documentary evidence in determining the tax liability of the Appellant. While the Appellant furnished evidence for certain periods to support their claim of not rendering Consulting Engineers Service, the absence of such evidence for the year 2001-02 worked against them. The Tribunal emphasized that the burden of proof rested on the Appellant to demonstrate that the consideration received was not subject to Service Tax, and the lack of evidence led to the confirmation of the demand for that specific period.

Issue 4: Imposition of penalties under Sections 76 and 78 of the Finance Act, 1994

Penalties under Sections 76 and 78 were imposed on the Appellant for default in payment of Service Tax and willful misstatement of facts, respectively. The Tribunal clarified that no mens rea was required for penalty under Section 76, and the delayed payment of tax after 12 years raised concerns regarding the Appellant's compliance. Additionally, the Tribunal upheld the penalty under Section 78, citing the Appellant's failure to disclose the consideration received in the statutory returns as a willful misstatement of facts, justifying the penalty imposition.

Issue 5: Appellant's plea for waiver of penalties based on payment made

The Appellant sought a waiver of penalties based on the payment made towards the Service Tax liability. However, the Tribunal rejected this plea, emphasizing that the delayed payment and the willful misstatement of facts by the Appellant did not warrant penalty waivers. Citing a precedent, the Tribunal concluded that the imposition of penalties under Sections 76 and 78 was justified given the Appellant's actions, ultimately dismissing the appeal for lack of merit.

This detailed analysis of the judgment provides insights into the legal intricacies surrounding the alleged evasion of Service Tax by the Appellant, the invocation of extended periods for demand confirmation, the importance of documentary evidence, the imposition of penalties, and the Appellant's plea for penalty waivers.