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2019 (2) TMI 866 - AT - Service TaxExtended period of Limitation - Levy of penalty - short payment of service tax - tax with interest paid on being pointed out - invocation of Section 73(1) of FA - Held that - There appears to be no dispute that Appellants have not paid the duty demanded at the relevant time and hence short paid the duty to that extent. In case of non/ short payment of duty, Section 73(1) of the Finance Act, 1994 automatically comes into picture and demand is made in terms of that section, to recover the duty so short paid. In case the duty is paid after the relevant date the same gets adjusted by application of the section. The argument of the Appellants to the effect that they had paid the service tax prior to issuance of Show Cause Notice do not hold good in view of the decision of Bombay High Court in case of Shri Ram Aluminium Pvt Ltd 2009 (6) TMI 89 - BOMBAY HIGH COURT , where it was held that The question, therefore, of having paid the amount before issuance of the show cause notice or after issuing the show cause notice cannot result in holding that there is no requirement of determination. Appeal dismissed - decided against appellant.
Issues Involved:
1. Imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994. 2. Invocation of the extended period of limitation under Section 73(1) of the Finance Act, 1994. 3. Justification for the non-payment or short payment of service tax by the appellant. 4. Applicability of Section 78 in the absence of malafide intention to evade tax. Issue-wise Detailed Analysis: 1. Imposition of Penalties Under Sections 76, 77, and 78 of the Finance Act, 1994: The Deputy Commissioner upheld the demands made by the show cause notices (SCNs) and imposed penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The penalties were detailed as follows: - Under Section 76, a penalty of ?100 per day was imposed for failure to pay service tax and interest, with the penalty not being less than ?200 per day or 2% of the tax per month, whichever is higher, starting after the due date till the actual payment date. - Under Section 77, a penalty of ?5000 was imposed for each SCN where this section was invoked. - Under Section 78, penalties equivalent to the amounts confirmed against each SCN were imposed for deliberately suppressing the value of taxable service with the intent to evade service tax. However, if the assessee paid the remaining interest and 25% of the penalty within 30 days of the order receipt, their liability would be discharged under Section 78, and no penalty under Section 76 would be imposed. 2. Invocation of the Extended Period of Limitation Under Section 73(1) of the Finance Act, 1994: The Commissioner (Appeal) and the adjudicating authority both justified the invocation of the extended period of limitation under the proviso to Section 73(1) of the Finance Act, 1994. The Commissioner (Appeal) noted that the appellant was deflating the taxable value by debiting service tax paid towards the tax liability of the previous month from the assessable value of services provided in the current month before computing the tax liability of the current month. This method led to the suppression of the cum-value of taxable services and justified the invocation of the extended period. The adjudicating authority also highlighted that the short payment of service tax was detected by the department during audits and would have otherwise gone unnoticed. 3. Justification for the Non-payment or Short Payment of Service Tax by the Appellant: The appellant argued that the short payment of service tax occurred due to erroneous practices at the branch level and was beyond their control. They contended that there was no malafide intention to evade tax and that they paid the service tax short paid when identified, even if certain demands were time-barred. However, the adjudicating authority and the Commissioner (Appeal) found that the appellant had willfully misstated the value of taxable services in the statutory ST-3 returns, leading to short payment of service tax. The adjudicating authority noted that the appellant had misdeclared the facts and suppressed the correct value of taxable service, justifying the imposition of penalties under Section 78. 4. Applicability of Section 78 in the Absence of Malafide Intention to Evade Tax: The appellant contended that Section 78 was not applicable as they had no malafide intention to evade tax. However, the adjudicating authority and the Commissioner (Appeal) found that the appellant had suppressed the correct value of taxable services and misdeclared the facts in the ST-3 returns. The adjudicating authority noted that the short payment of service tax would have gone unnoticed if not pointed out by the department. The Commissioner (Appeal) also highlighted that the appellant had instructed their branches to make deductions from the total commission amount supplied by the data center for determining the amount of service tax payable, resulting in the misdeclaration of the value of services. Consequently, the invocation of penal provisions under Section 78 was deemed fully justified. Conclusion: The appeal was dismissed, and the imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994, was upheld. The extended period of limitation under Section 73(1) was justified due to the suppression of taxable value and misdeclaration by the appellant. The appellant's argument of no malafide intention was not accepted, and the penalties under Section 78 were found to be applicable. The decision was pronounced in court on 30.01.2019.
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