2018 (11) TMI 919 - AT - Service Tax

Interest on delayed refund - entitlement to Interest for the time barred period - penalty - Held that - When the demand for the period April, 2005 to September, 2006 is held to be time barred, then the interest thereon is also not sustainable in law. Therefore the contention of the Appellant on this point is accepted. Penalty - Held that - According to the Appellant they are entitle for refund of the excess amount of ₹ 4,61,624/-. If that is so i.e. if the amount so deposited by the appellant before the issuance of show cause notice satisfy the demand of the amount of service tax from October, 2006 to March, 2011 along with interest for the period from October, 2006 to March, 2009 - the Appellant is not liable to pay any penalty. The matter is remanded to the ld. Commissioner of Central Tax, Appeals-I, Mumbai, with a direction to recalculate the demand and interest.

Summary

Issues:
1. Time-barred demand for service tax and interest.
2. Cum-tax benefit eligibility.
3. Penalty under Section 78 of the Finance Act, 1994.
4. Refund of excess amount deposited by the Appellant.

Analysis:
1. The Appeal was filed against an order by the Commissioner of Central Tax, Appeals-I, Mumbai, regarding a time-barred demand for service tax. The Appellant argued that interest on the amount for the period 2005-06 should not be upheld since the demand was time-barred. The Tribunal agreed, stating that if the demand is time-barred, the interest is also not sustainable in law. The Appellant's contention on this point was accepted.

2. The Appellant also claimed cum-tax benefit, which was denied based on settled legal positions. The Tribunal held that the Appellant was not entitled to the cum-tax benefit. Additionally, the Tribunal found a clear case of suppression of fact by the Appellant, as they had not deposited service tax or filed statutory returns despite providing services, leading to the sustained demand and liability for penalty under Section 78 of the Finance Act, 1994.

3. The Appellant had already deposited a significant amount towards service tax before the issuance of the show cause notice. The Commissioner's order held the Appellant liable for service tax, interest, and penalty for a specific period. However, due to the Tribunal setting aside interest for a certain period, a re-calculation was necessary. The Tribunal remanded the matter to the Commissioner for recalculation, directing a refund of any excess amount deposited by the Appellant if applicable.

4. The Tribunal's decision on the Appeal was to remand the matter to the Commissioner for re-calculation of the demand and interest, with directions to refund any excess amount. The Appeal was disposed of with these instructions, providing clarity on the issues of time-barred demand, cum-tax benefit, penalty under Section 78, and the refund of excess amount deposited by the Appellant.