2018 (2) TMI 287 - AT - Service Tax

Short payment of service tax - penalty - Held that - the benefit of section 80 as contended by the appellants, cannot be extended to them - The provisions of section 73 also makes it clear that in case of suppression, fraud, mis-statement etc., with an intent to evade payment of duty would call for imposition of penalty to the extent of 100% of tax evaded - appeal dismissed - decided against appellant.

Summary

Issues involved:
1. Discrepancies in service tax payments and declarations.
2. Short-payment of tax and penalties imposed.
3. Applicability of sections 73(3) and 73(4A) of the Finance Act, 1994.
4. Justification for discrepancies and penalties.

Detailed Analysis:
1. The case involved discrepancies in service tax payments and declarations by the appellant, including differences in taxable values, excess credit availed, and short expungement in input credit. A show-cause notice was issued for these violations, leading to demands for various service tax amounts. The adjudicating authority confirmed the demands and imposed penalties under relevant provisions.

2. The Commissioner (Appeals) rejected the appellant's appeal, citing clear differences in figures declared in ST-3 returns compared to actual figures. The appellant failed to provide plausible explanations or justifications for the discrepancies and short-payments. The Commissioner emphasized that the appellant had paid the short-paid tax only after being detected by departmental audit officers, indicating a lack of intent to evade taxes. The issue of suppression of facts with a malafide intent to evade tax was highlighted, leading to penalties under the Finance Act, 1994.

3. The Commissioner addressed the applicability of sections 73(3) and 73(4A) of the Finance Act, 1994. Section 73(3) was deemed inapplicable due to elements like fraud and suppression of facts involved in the case. The Commissioner ruled out the applicability of section 73(4A) as the appellant had not paid the specified penalty before the issuance of the show-cause notice. The plea for non-issuance of notice under section 73(3) was considered without merit, given the circumstances of the case.

4. The appellate authority noted that the appellant did not dispute the differential demand of service tax arising from discrepancies in audit records and returns. The lack of explanations or justifications for the differentiation in values indicated a malafide intention to evade tax. The authority referenced a Tribunal decision to support the imposition of penalties in cases involving suppression and fraud, reinforcing the rejection of the appellant's appeal.

In conclusion, the judgment upheld the demands for service tax amounts and penalties, emphasizing the importance of accurate declarations and compliance with tax regulations to avoid penalties for evasion or suppression of facts.