2024 (10) TMI 1462 - AT - Service Tax

Non-payment/ short payment of service tax - demand of service tax Education Cess Secondary Higher Education Cess - HELD THAT - Appellant in the present case even before the Original Authority did not contested anything in the show cause notice except for certain computations - The findings or facts rendered by both the authority no nonpayment/ short payment of service tax cannot be faulted with. Even as per the calculation chart submitted by the appellant they have admitted that short payment of service tax to the tune of Rs 5,44,492/- That being so, the quantum of short payment needs to be re-determined after allowing the deduction of the amount claimed by the appellant to be towards service tax paid by Hindalco. For the limited purpose of re-computing the demand after allowing this deduction from the gross value matter is remanded back to the original authority. The findings recorded by the authorities below cannot be disputed in respect of limitation, as the appellant was well aware that he was providing taxable services and short paid the service tax, even after issuing invoices indicating the services tax payable and collecting the same from the service recipient. Before the original authority appellant have specifically admitted and has stated that they do not intend to contest the demand made on any ground other than the quantification. In view of the specific averments made by the appellant to this effect in their submissions to the adjudicating authority and during the course of hearing before him, we are not inclined to admit any such plea at this stage. These pleas have been subsequently raised by the counsel for the appellant at the time of hearing before us. Thus, we uphold the penalties imposed upon the appellant under Section 77 78. However the quantum of penalty under Section 78 shall have to be determined after re-computation of the demand in the remand proceedings. We remand the matter to original authority for the limited purpose.

Issues Involved:

1. Short payment of service tax and the quantification of the demand.
2. Deductions claimed for Provident Fund and service tax paid by Hindalco.
3. Invocation of the extended period of limitation for demand.
4. Imposition of penalties under Sections 77 and 78 of the Finance Act, 1994.

Issue-wise Detailed Analysis:

1. Short Payment of Service Tax and Quantification of Demand:

The primary issue addressed in the judgment was the short payment of service tax by the appellant. The original authority confirmed a demand of Rs. 10,13,148/- for service tax, which included education cess and secondary & higher education cess. The appellant admitted to a short payment of Rs. 5,44,492/- but contested the quantification of the demand. The discrepancy arose due to deductions claimed by the appellant, which were not allowed by the adjudicating authority. The tribunal found that the appellant did not contest the show cause notice on merit, except for the quantification aspect, and thus, the findings of nonpayment/short payment of service tax were upheld.

2. Deductions Claimed for Provident Fund and Service Tax Paid by Hindalco:

The appellant claimed deductions for amounts related to Provident Fund and service tax paid by Hindalco. The adjudicating authority disallowed the deduction for Provident Fund, citing statutory provisions and a CBEC Circular, which clarified that such amounts are part of the taxable value of services. Regarding the service tax paid by Hindalco, the tribunal noted a contradiction in the orders of lower authorities. While it was observed that the appellant received Rs. 39,12,896/- as service tax from Hindalco but deposited only Rs. 30,29,050/-, the tribunal found no evidence to support the deduction claimed by the appellant. Consequently, the tribunal remanded the matter back to the original authority for re-computation of the demand, allowing the deduction of the amount claimed as service tax paid by Hindalco.

3. Invocation of the Extended Period of Limitation for Demand:

The original authority invoked the extended period of limitation under the proviso to Section 73(1) of the Finance Act, 1994, citing suppression of facts by the appellant with the intent to evade tax. The tribunal upheld this invocation, noting that the appellant was aware of providing taxable services and short-paid the service tax, even after issuing invoices indicating the service tax payable. The appellant's admission before the original authority that they did not intend to contest the demand on any ground other than quantification further supported this decision.

4. Imposition of Penalties under Sections 77 and 78 of the Finance Act, 1994:

Penalties were imposed under Sections 77 and 78 for failure to comply with statutory provisions and suppression of taxable service value. The tribunal upheld these penalties, emphasizing the appellant's conscious suppression of service tax liability and the collection of service tax without depositing it with the government. The tribunal cited several precedents to support the imposition of penalties, stating that the appellant's actions demonstrated a clear disregard for the law. However, the quantum of penalty under Section 78 was to be determined after re-computation of the demand in the remand proceedings.

Conclusion:

The appeal was partly allowed, primarily for the re-computation of the demand after allowing the deduction for service tax paid by Hindalco. The tribunal directed the original authority to decide the matter within three months, emphasizing the age of the case. The penalties under Sections 77 and 78 were upheld, with the quantum of penalty under Section 78 subject to re-computation.

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