2019 (2) TMI 1245 - AT - Service Tax

Wrong availment of Cenvat credit - discrepancy in the figures shown in the ST-3 Returns as compared with the figures in the financial statement of the appellant - reverse charge mechanism - Held that - The demand of the amount of ₹ 1,39,322/- arose out of calculation mistake in the year 2014-15, while deducting-commission paid of ₹ 49,434/-which has been inadvertently added twice (Table-II) and CENVAT Credit of ₹ 3,689/- and ₹ 10,883/- had been allowed less in the year 2013-14 and 2014-15, respectively, thereby causing demand of ₹ 1,39,322/- which is not payable by the appellant and the demand of ₹ 1,39,322/- is liable to be set aside - Further, Security Service charges under reverse charge mechanism, 75% of Service Tax on gross amount which should be ₹ 9,10,180/- and service tax arises thereon ₹ 1,12,500/- instead of ₹ 1,23,563/- as wrongly calculated by the Department which requires rectification in the demand. Under the above circumstances, no demand was payable by the appellant. Penalty - CENVAT Credit - common input service of Security Agency Service - providing the exempted service namely Trading of Goods and taxable service such as vehicle repairing service and business auxiliary service - Held that - The element of mis-statement, suppression of facts etc. with an intent to evade payment for service tax. Accordingly the penalty imposed under Section 78 is liable to be set aside - penalty set aside. Appeal disposed off.

Issues:
1. Discrepancies in ST-3 Returns under reverse charge mechanism.
2. Allegation of wrong availment of Cenvat credit.
3. Discrepancy in figures between ST-3 Returns and financial statements.
4. Confirmation of demand, interest, and penalty by Adjudicating Authority.
5. Modification of adjudication order by Commissioner (Appeals).
6. Calculation errors in demand amount and Cenvat credit.
7. Imposition of penalty under Section 78 of the Finance Act, 1994.
8. Charging of interest under Section 75 of the Finance Act, 1994.
9. Appellate Tribunal's decision on demand confirmation, penalty, and interest.

Analysis:
1. The case involved discrepancies in the ST-3 Returns of the appellant under the reverse charge mechanism. A Show Cause Notice was issued alleging wrong availment of Cenvat credit and discrepancies in figures compared to the financial statements. The Adjudicating Authority confirmed a demand along with interest and penalty under Section 78.

2. The Commissioner (Appeals) modified the adjudication order after careful examination of the calculation sheet, ST-3 Returns, and Balance Sheet submitted by the appellant. Errors in the calculation of demand were identified, leading to adjustments in the service tax liability. The Commissioner upheld the penalty under Section 78 due to the invocation of the extended period for suppression of facts.

3. Regarding interest, it was found that the appellant was liable to pay interest for non-payment or delayed payment of service tax as per Section 75 of the Finance Act, 1994. The Commissioner upheld the adjudicating authority's order with partial modifications in specific paragraphs related to demand confirmation and penalty imposition.

4. The Tribunal considered the reconciliation statement and TR-6 challans submitted by the appellant to explain discrepancies. After hearing both sides, the Tribunal identified calculation mistakes in the demand amount for certain years and rectified the errors. It was observed that no demand was payable by the appellant under the circumstances presented.

5. Additionally, the Tribunal noted that the appellant had utilized CENVAT credit for various services and maintained separate accounts for exempted and taxable services. No evidence of misstatement or intent to evade payment was found, leading to the setting aside of the penalty imposed under Section 78. The appeal was disposed of accordingly by the Tribunal.

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