2014 (11) TMI 930 - HC - Service Tax

Waiver of pre deposit - Man Power Recruitment Agency and business support service - Contravention of the provisions of Rule 6 of the Service Tax Rules, 1994 read with Section 68 of the Finance Act - Held that - Prima facie there is a finding by the Original Authority that the appellant had admitted that service tax has been collected and not paid over to the credit of the Government. In another matter, the appellant is claiming Cenvat Credit and that issue, as already pointed out by the Tribunal, should be gone into at the time of final hearing. For the purpose of pre-deposit, prima facie case as well as the balance of convenience should be considered. In this case except stating that certain amount is due from the bank investments from USA, the appellant has not chosen to file any document in support of his submission. The mere statement or affidavit without any supporting document will be no avail. The order of the Tribunal requires no modification. However, taking note of the plea of the appellant seeking further time for making payment, we are inclined to grant extension of time. - Decided partly in favour of assessee.

Summary

Issues:
1. Proper quantification of service tax demand under Sections 73 and 73-A of the Finance Act, 1994.
2. Interpretation of Sections 73 and 73-A regarding service tax demand and imposition of penalty.
3. Imposition of penalty under Section 78 in cases of non-payment of service tax.
4. Applicability of previous judgments on penalty imposition.
5. Consideration of bonafide belief for non-depositing service tax and applicability of Section 80 benefits.
6. Consideration of Supreme Court judgment on pre-deposit.
7. Evaluation of Cenvat Credit impact on tax liability.

Analysis:
1. The appellant, a Man Power Recruitment Agency, failed to pay service tax for January 2009 to March 2010, leading to a show cause notice. The Commissioner found the appellant liable for service tax as they collected but did not remit it to the government, citing financial crisis reasons, which were not accepted. The Adjudicating Authority confirmed the demand, interest, and penalty.

2. The appellant appealed to the Tribunal, stating they paid the tax amount in part and requested a waiver due to financial hardship. The Tribunal ordered a deposit, considering the total demand, interest, and penalty, and the appellant's plea, granting time for compliance.

3. The High Court addressed the substantial questions of law raised by the appellant. It upheld the Tribunal's order, emphasizing the appellant's admission of collecting but not paying service tax. The Court granted an extension for payment but required an affidavit of undertaking by a specified date.

4. The Court noted the appellant's lack of supporting documents for their financial claims and highlighted the importance of a prima facie case and balance of convenience. The Tribunal's order was confirmed, with an extension granted for the payment deadline.

5. The judgment focused on the appellant's failure to remit collected service tax, the Tribunal's decision on pre-deposit, and the need for proper documentation to support financial claims. The Court emphasized compliance with the Tribunal's directives and the consequences of non-compliance.