2024 (4) TMI 72 - AT - Service Tax

Best judgment assessment under section 72 of the Finance Act, 1994 - liability to pay service tax of appellant, being sub contractor - works contract service or commercial or industrial construction service?. The first submission of the appellant is that its contracts involved both use of materials and rendering of services and hence they were works contract services and not commercial or industrial construction service - HELD THAT - Such an assertion was also made before the Commissioner (Appeals) and before him, it was further asserted that the appellant had paid VAT on 65% of the value of the contracts. The appellant did not produce any document to support either its assertion that the contracts were composite contracts or that it had paid VAT on any part of the value of the goods of the contract. There is nothing in the appeal to support this assertion. This submission, therefore cannot be accepted. The second submission is that the appellant was illiterate but it was still the responsibility of the officers to determine the correct tax liability - HELD THAT - The assertion that the appellant is illiterate is not borne out from the appeal itself because he signed (in Hindi) not only on the appeal but also on other documents enclosed with the appeal - Even if the appellant is not very educated and is running the business, he will have some records, bills, etc. which he could have produced. Under these circumstances, the adjudicating authority was correct in determining the tax liability based on the documents produced before him. There is nothing in these appeals even to support the assertion of the appellant that it had rendered works contract service and the amount which it had received were inclusive of the materials. The appellant also submitted that it was for the audit team to determine how much tax was paid by its service recipient Ahuja and also find out how much tax was paid by all other service providers who had provided services to Ahuja and from that determine how much is due from the appellant - This assertion that every other assessee has to do their job properly and produce records and file returns and based on their returns, the tax liability of the appellant should be determined is misconceived especially considering that the appellant had not produced its own records to support its assertion. It is also to be noted that the letters from Ahuja produced by the appellant before the Commissioner (Appeals) also did not clearly state that Ahuja had included the value of the services rendered by the appellant in the taxable value which it declared and paid tax. Nothing produced in this appeal supports the contention of the appellant (a) that it was not required to pay service tax; or (b) that the main contractor had paid service tax on the total amount including the value of taxable services rendered by the appellant; or (c) that the appellant had entered into composite works contracts which included the supply/deemed supply of goods and that the appellant had paid VAT on the value of the goods. The appellant did not take the registration or pay service tax or file returns. Even when the investigation was commenced, the appellant did not produce anything other than its bank statements - the impugned order is correct and proper and calls for no interference - Appeal dismissed.

Summary

Issues involved:
1. Appellant's failure to register with Service Tax department and non-payment of service tax.
2. Best judgment assessment u/s 72 of the Finance Act, 1994 based on information provided by the appellant.
3. Dispute regarding classification of services rendered by the appellant and liability to pay service tax.
4. Appellant's contention on VAT payment and abatement entitlement.
5. Appeal against the orders in original confirming demand of duty and penalties imposed.

Issue 1: Appellant's failure to register with Service Tax department and non-payment of service tax
The appellant, a construction firm, was found to have rendered services without being registered with the Service Tax department or paying any service tax. The department conducted best judgment assessment u/s 72 of the Finance Act, 1994 based on the appellant's bank statements for the relevant years.

Issue 2: Best judgment assessment u/s 72 of the Finance Act, 1994
The department issued Show Cause Notices and passed orders confirming duty demand and imposing penalties u/s 77 and 78 based on the appellant's non-compliance. The Commissioner (Appeals) upheld these orders, stating that the appellant failed to register, pay service tax, or file returns, leading to the best judgment assessment.

Issue 3: Dispute regarding classification of services and tax liability
The appellant claimed its services were works contract services, not commercial or industrial construction services, and argued for abatement entitlement. However, the Commissioner (Appeals) found no evidence to support these claims and rejected the appeals, upholding the original orders.

Issue 4: Appellant's contention on VAT payment and abatement entitlement
The appellant contended it had paid VAT on part of the contract value and should be entitled to abatement. However, the lack of documentary evidence to substantiate these claims led to the rejection of the appeals by the Commissioner (Appeals).

Issue 5: Appeal against orders confirming duty demand and penalties
The appellant appealed against the orders confirming duty demand and penalties, arguing that the tax liability should be determined based on the tax paid by the main contractor. However, the Tribunal upheld the impugned order, dismissing all three appeals and affirming the duty demand and penalties imposed.