2016 (1) TMI 1014 - AT - Service Tax

Job work - Business Auxiliary services - Default in discharging their service tax liability even though they continued to bill their principals for service tax. - financial difficulties - The appellant claims that their activity is manufacture and hence not liable to be taxed as business auxiliary service , that they were eligible for exemption under notification no. 8/2005-ST dated 01/03/2005. Held that - appellant had applied for registration as provider of business auxiliary services ; rendering of job-work is one of the activities within its ambit. At no stage have they contended that this was a classification decided upon by tax authorities. Having registered themselves as a service provider and paid taxes as provider of business auxiliary service for a certain period, they are bereft of any ground to claim error in classification. In the absence of any justification, procedurally or substantively, to seek a revisit of classification of the service rendered by the appellant, there is no legal provision to do so. The plea of taxability and any exemption from service tax is irrelevant in the context of the inclusion of service tax in the amounts billed to their principals as job-work charges. It is seen that the appellant has collected service tax along with consideration from its principals for service rendered but failed to deposit the same in the government account. By this act of omission, the plea of leniency in the matter of penalties will not evoke a sympathetic response - demand confirmed.

Issues:
1. Tax liability on job work charges for the period up to September 2007.
2. Tax liability for the period from July 2007 to June 2008.
3. Classification of services provided by the appellant.
4. Financial difficulties faced by the appellant.
5. Appellant's failure to deposit collected service tax.
6. Imposition of penalties under sections 77 and 78.

Analysis:
1. The appellant, a provider of "business auxiliary services," was initially paying service tax on job work charges until June 2007 but ceased discharging their liability while continuing to bill their principals for service tax. They later deposited a sum related to dues up to September 2007. The appellant was served notice for a tax liability for the period from July 2007 to June 2008, amounting to Rs. 19,89,174, with the defence of financial difficulties. The original authority confirmed the demand, and the Commissioner of Central Excise concurred. The appellant challenged the classification and penalties before the Tribunal.

2. The appellant argued that their activity constituted manufacturing and should not be taxed as "business auxiliary service." They claimed eligibility for exemption under a specific notification, cited financial difficulties as the reason for non-payment, and sought a waiver of penalties. The Tribunal noted that the appellant had been paying tax as a provider of "business auxiliary service" and had not challenged this classification earlier. The Tribunal emphasized that the appellant should have filed a refund claim if there were doubts about taxability, rather than challenging the classification at the appeal stage.

3. Despite the appellant's claim of financial distress, the Tribunal found that they had collected service tax from their customers but failed to deposit it with the government. The Tribunal held that financial difficulties did not justify the appellant's failure to fulfill their tax obligations. The Tribunal cited a previous case to emphasize that collecting service tax and not remitting it to the government constituted a deliberate breach, leading to liability for penalties under Section 78 of the Finance Act, 1994.

4. Ultimately, the Tribunal rejected the appeal, emphasizing that the appellant had recovered service tax from their customers but failed to pay it to the Revenue. The Tribunal found the appellant's actions to be mala fide, as they did not file the required returns or pay the collected service tax. The Tribunal concluded that the appellant's failure to fulfill their tax obligations, despite collecting the tax from customers, warranted the imposition of penalties under Section 78.

Conclusion:
The Tribunal upheld the tax liability for the period in question, rejected the appellant's arguments regarding classification and financial difficulties, and imposed penalties for the appellant's failure to deposit the collected service tax.

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