2024 (4) TMI 788 - AT - Service Tax

Short payment of service tax - assessee s only contention is that as per section 73 (3) no show cause notice should have been issued with respect to these demands - invocation of Extended period of Limitation - HELD THAT - The scheme of the service tax requires the assessee to self-assess service tax and file returns as per section 70 of the Finance Act. If the assessee either fails to furnish the service tax return or having filed the return fails to assess the tax in accordance with the provisions of the act or rules section 72 empowers the central excise officer to require the assessee to produce such accounts documents or other evidences as he may deem necessary and after taking into account all the relevant materials make the best judgment assessment - The central excise officer may seek any details which he feel necessary to scrutinize them. The appellant cannot be faulted for not providing any information which it was not required to provide in the ST-3 returns. The central excise officer is given sufficient time to scrutinize the returns and issue a demand under section 73 within the normal period of limitation. If he fails to do so and if some short payment is not detected and the demand gets time barred the responsibility for that rests squarely on the officer who is mandated to scrutinize the returns and not on the assessee. In order to invoke extended period of limitation one of the five elements indicated above need to be established and they cannot be presumed. Similarly to invoke section 73(4) one of the five elements needs to be established and their presence cannot be presumed. The Commissioner has erred in issuing a show cause notice covering the amount of Rs. 5, 25, 39, 217/- which was already paid with interest prior to the issue of show cause notice. This payment is squarely covered by section 73(3)of the Finance Act and it is not excluded by virtue of section 73(4). The demand to this extent needs to be set aside. Service tax payable as reflected in the ST-3 returns but which was not paid during the period 2012-13 and 2013-14 - HELD THAT - The show cause notice was issued on 10.03.2016. If the service tax was payable as per the return and was not paid even a preliminary scrutiny of the service tax return could have disclosed this fact. As it is already held that the elements for invoking the extended period of limitation were not established in this case the demand of Rs. 6, 37, 58, 915/- on this ground also needs to be set aside. Penalty u/s 78 - HELD THAT - The imposition of penalty under section 78 on the assessee also needs to be set aside. Dropping of demand of Rs. 2, 18, 35, 039/-for the period 2012-13 and 2013-14 under rule 6(3) of CCR - HELD THAT - The Commissioner examined the returns and the CA certificates and came to the conclusion that the amount under rule 6(3) was correctly reversed. If Revenue wants to contest this finding it should put forth reasons as to why this finding is wrong. All that is in the Revenue s appeal and the review order passed by the Committee of Commissioners is that the committee has doubts and therefore the Commissioner has committed a grave error. No mistake in the finding of the Commissioner has been pointed out with any evidence whatsoever. Therefore Revenue s appeal is without any merit and it deserves to be dismissed. The assessee s appeal is allowed and the Revenue s appeal is dismissed with consequential relief to the assessee.

Summary

Issues Involved:
1. Applicability of Section 73(3) of the Finance Act, 1994.
2. Invocation of the extended period of limitation.
3. Imposition of penalty u/s 78.
4. Dropping of demand regarding non-reversal of CENVAT credit u/r 6(3) of CENVAT Credit Rules, 2004.

Summary:

Issue 1: Applicability of Section 73(3) of the Finance Act, 1994
The assessee contended that the amount of Rs. 5,25,39,217/- paid before the issuance of the show cause notice should not have been included in the notice as per Section 73(3) of the Finance Act, 1994. The Revenue argued that Section 73(3) did not apply due to the presence of elements listed in Section 73(4) such as fraud, collusion, willful misstatement, suppression of facts, or contravention of provisions. The Tribunal found that the Commissioner erred in issuing the show cause notice for this amount, as Section 73(3) was applicable and the conditions of Section 73(4) were not established. Therefore, the demand of Rs. 5,25,39,217/- was set aside.

Issue 2: Invocation of the Extended Period of Limitation
The assessee argued that the extended period of limitation should not have been invoked for the demand of Rs. 6,37,58,915/-. The Tribunal held that the elements required to invoke the extended period of limitation were not established. The responsibility to scrutinize returns and issue demands within the normal period of limitation lies with the Central Excise Officer. Hence, the demand of Rs. 6,37,58,915/- was set aside.

Issue 3: Imposition of Penalty u/s 78
The penalty of Rs. 5,81,49,067/- imposed by the Commissioner was challenged by the assessee. The Tribunal, consistent with its findings on the extended period of limitation and applicability of Section 73(3), set aside the penalty as well.

Issue 4: Dropping of Demand Regarding Non-Reversal of CENVAT Credit u/r 6(3) of CENVAT Credit Rules, 2004
The Revenue appealed against the Commissioner's decision to drop the demand of Rs. 2,81,35,079/- for the period July 2010 to September 2013. The Commissioner had accepted the assessee's contention, supported by CA certificates and ST-3 returns, that the CENVAT credit was correctly reversed. The Tribunal found no merit in the Revenue's appeal, as no specific errors in the Commissioner's findings were pointed out. Consequently, the Revenue's appeal was dismissed.

Conclusion:
The assessee's appeal was allowed, and the Revenue's appeal was dismissed, with consequential relief to the assessee.