2019 (4) TMI 1349 - AT - Service Tax

Short payment of service tax - waiver of demand of service tax - HELD THAT - BSNL during relevant time, had short paid service tax to the extent of about ₹ 52.88 lakhs. However, it is also seen that BSNL has suo-motu made payment of such differential service tax of ₹ 74.20 lakhs. As such, no more service tax is required to be paid. Revenue has filed the present appeal challenging the amount of service tax dropped by the adjudicating authority. On the basis of recalculation of service tax dues and submission of a Certificate from the independent Chartered Accountant, the correct service tax liability has been arrived at and settled by BSNL. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Dispute over service tax liability for the period from 01.12.1997 to 31.03.2002 - Appeal against Order-in-Original No.ST/Shillong No.08/2008 dated 28.08.2008 - Cross appeals by Revenue and assessee.

Detailed Analysis:

1. Background and Disputed Tax Liability:
The case involved a dispute over service tax liability for the period from 01.12.1997 to 31.03.2002. The Appellant, M/s B.S.N.L., had several Secondary Switching Areas (SSAs) registered for service tax payment. The Department alleged a shortfall of about ?3.47 Crores in service tax payment by BSNL. A show-cause notice was issued, leading to an Order-in-Original demanding ?2.77 Crores along with interest and penalty under Section 78 of the Finance Act, 1994.

2. Appeals and Arguments:
Both Revenue and BSNL filed cross-appeals. BSNL argued that certain receipts should be excluded from service tax calculation, such as pre-1994 service payments, PCO receipts, security deposits, late payment charges, and revised/cancelled bill amounts. BSNL supported its stance with a Certificate from an independent Chartered Accountant certifying the deductions.

3. Judicial Review and Decision:
The Tribunal reviewed the arguments from both sides. It noted that service tax was calculated based on gross receipts, but BSNL contended that only certain receipts were taxable. The Certificate from the Chartered Accountant supported BSNL's claim of deductions. Upon recalculating, the Tribunal found that BSNL had short-paid service tax by ?52.88 lakhs. However, BSNL had already paid ?74.20 lakhs voluntarily, covering the shortfall.

4. Tribunal's Ruling:
The Tribunal concluded that the correct service tax liability had been determined and settled by BSNL, as supported by the independent Chartered Accountant's Certificate. Therefore, the impugned order demanding ?2.77 Crores was set aside, and BSNL's appeal was allowed. The Revenue's appeal was rejected.

This detailed analysis outlines the legal judgment involving the dispute over service tax liability, the arguments presented by both parties, the judicial review process, and the final ruling by the Tribunal, providing a comprehensive understanding of the case.