2009 (3) TMI 100 - AT - Service Tax

Failure to comply with requirement of Not. 12/2003-S.T. failure to produce necessary certificate to the effect that the transporter had not availed the Cenvat Credit facilities Statement that necessary certificates were produced and original copies thereof were promised to be produced before the Additional Commissioner is per se contrary to the record appellant not hesitating to make statement of fact contrary to record and not approached Comm. (A) with clean hands lack of bonafide no plea of hardship stay not granted appellant is directed to pre-deposit entire dues

Summary

Issues:
1. Failure to comply with Notification No. 12/2003-S.T.
2. Confirmation of service tax demand.
3. Imposition of interest and penalty.
4. Appeal against the order.
5. Lack of documentary proof.
6. Assertion of producing necessary certificates.
7. Rejection of claim by lower authorities.
8. Comparison with previous court decisions.
9. Clean hands doctrine and lack of bona fide conduct.
10. Application for stay of the order.

Failure to comply with Notification No. 12/2003-S.T.:
The Original Authority confirmed a service tax demand and educational cess due to the applicant's failure to establish compliance with Notification No. 12/2003-S.T. regarding the non-availing of facilities under Cenvat Credit Rules, 2004. The demand was made under the provisions of Section 73(2) of the Finance Act, 1994, with interest and penalty imposed.

Confirmation of service tax demand:
The demand was confirmed by the Original Authority due to the lack of documentary evidence proving compliance with the notification. The appellant failed to produce necessary certificates before the audit party or during the hearing, leading to the confirmation of the service tax amount.

Imposition of interest and penalty:
In addition to the service tax demand, interest at 13% and a penalty were imposed under Section 75 and Section 76 of the Act, respectively. The penalty was calculated at Rs. 200 per day for non-compliance, subject to a maximum of the service tax amount due.

Appeal against the order:
The appellant filed an appeal contending that the demand was confirmed based on unwarranted presumption and assumption. They claimed to have produced necessary certificates and promised to present original copies, which were allegedly not considered before passing the order.

Lack of documentary proof:
Despite the appellant's assertion of producing necessary certificates, no documentary proof was found on record to substantiate this claim. The Original Authority's finding stated that no such proof was submitted, leading to doubts about the appellant's compliance with the notification.

Rejection of claim by lower authorities:
The lower authorities rejected the appellant's contention that the demand was unjustified, citing the lack of provisions in the Central Excise Act and Rules to support the appellant's argument. The authorities believed that the tax liability was being evaded through suppression of facts.

Comparison with previous court decisions:
The appellant referred to previous court decisions to support their argument of revenue neutrality and admissibility of Cenvat credit. However, the authorities rejected this argument, emphasizing the lack of clean hands on the part of the appellant.

Clean hands doctrine and lack of bona fide conduct:
The Tribunal noted that the appellant did not approach the lower appellate authority with clean hands, as they failed to produce the required certificates to prove non-availing of Cenvat Credit Rules facilities. The appellant's conduct, making statements contrary to the record, indicated a lack of bona fide intentions during the proceedings.

Application for stay of the order:
The Tribunal rejected the application for stay of the order, directing the appellants to deposit the entire dues within a specified period. The lack of bona fide conduct and failure to provide documentary proof led to the dismissal of the request for an unconditional stay of the order.