2024 (11) TMI 9 - AT - Service Tax

Service tax demand after allowing the deductions - non-payment/ short payment of service tax - tax demand and interest under Section 73(2) and Section 75 of the Finance Act, 1994 - penalties u/s 77 and 78 of the Finance Act, 1994 and extended period for demand invoked under the proviso to Section 73(1). HELD THAT - Both the authority no nonpayment/ short payment of service tax cannot be faulted with. Even as per the calculation cahrt submitted by the appellant they have admitted that short payment of service tax. The difference in two is on account deduction claimed by the appellant treating certain amounts received as amount towards provident fund. However adjudicating authority has specifically arrived at finding that the issue of provident fund is not even the part of present show cause notice and separate proceeding have been initiated against the appellant by another show cause notice. This finding is not in dispute. That being so, service tax has been rightly demanded and confirmed after allowing the deductions towards the amounts received for the services provided prior to 16.06.2005 and after deducting the amount of service tax included in the gross amount. The above findings cannot be disputed, 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. As evident appellant has during the entire period not filed any ST-3 return. Appellant do not dispute the factum of not filing the ST-3 return during the entire period of dispute. They have suppressed the information with intend to evade payment of taxes. Accordingly, the demand by invoking the extended period of limitation and penalty imposed cannot be disputed with. Assessee appeal dismissed.

Issues Involved:
1. Confirmation of service tax demand and interest.
2. Imposition of penalties under Sections 77 and 78 of the Finance Act, 1994.
3. Invocation of extended period of limitation.
4. Consideration of revenue neutrality.
5. Calculation and deduction disputes regarding service tax liability.

Issue-wise Detailed Analysis:

1. Confirmation of Service Tax Demand and Interest:
The judgment confirmed the demand for service tax amounting to Rs. 4,80,077/- under Section 73(2) of the Finance Act, 1994, along with interest under Section 75. The appellant was found to have provided taxable services without discharging the due service tax. The adjudicating authority allowed deductions for services provided prior to 16.06.2005, as they became taxable only from that date, but denied deductions for Provident Fund contributions, as these were not part of the taxable service value.

2. Imposition of Penalties under Sections 77 and 78:
Penalties were imposed under Sections 77 and 78 of the Finance Act, 1994. The appellant was penalized Rs. 5,000/- under Section 77 for non-compliance with statutory provisions, and Rs. 4,80,077/- under Section 78 for willful suppression of facts and evasion of service tax. The penalty under Section 78 could be reduced to 25% if dues were paid within 30 days. The appellant's failure to disclose taxable services and receipt of payments to the department constituted suppression of facts, justifying the penalties.

3. Invocation of Extended Period of Limitation:
The extended period of limitation was invoked under the proviso to Section 73(1) due to the appellant's suppression of facts and intent to evade tax. The appellant did not disclose the provision of taxable services or the receipt of payments, and only registered for service tax after departmental intervention. This non-disclosure and delayed registration justified the invocation of the extended period for demand recovery.

4. Consideration of Revenue Neutrality:
The appellant's argument of revenue neutrality was rejected. The tribunal observed that the availability of Cenvat credit to the service recipient does not negate the appellant's obligation to pay service tax. The plea of revenue neutrality was deemed inconsistent with statutory provisions, as it would undermine the Cenvat credit system by leading to non-payment of taxes.

5. Calculation and Deduction Disputes:
The appellant contested the quantification of the demand, arguing for deductions based on different service tax rates applicable in various periods and for amounts received as Provident Fund contributions. The adjudicating authority allowed deductions for non-taxable services provided before 16.06.2005 but rejected the Provident Fund deduction, as it was not part of the show cause notice. The appellant's failure to substantiate claims with proper documentation led to the dismissal of these contentions.

Conclusion:
The appeal was dismissed, affirming the demand for service tax, interest, and penalties. The tribunal upheld the findings of the lower authorities, emphasizing the appellant's failure to comply with statutory obligations and the lack of merit in the arguments presented. The decision highlighted the importance of timely tax payment and disclosure to avoid penalties and extended limitation periods.

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