2010 (6) TMI 307 - AT - Service Tax

Waiver of pre-deposit - job-work of rebuilding of old worn-out rollers, liners, tyres and old worn-out components of cement plants, steel plants - registered with the department as providers of maintenance and repair services - differential service tax - on the ground that they had not included the value of the goods and materials used in the aforesaid activities, in the taxable value of the taxable service - Department alleged that value of the goods and materials so used were not separately shown in the relevant invoices and, therefore, the assessee was not entitled to claim the benefit of Notification No. 12/03-S.T - Held that - short-payment of service tax was worked out by the auditor for the above period, which was paid by the appellant - appellant cannot be alleged to have suppressed anything before the department - service tax required to be paid on the gross amount charged from the service recipient for providing the maintenance and repairs service - direct the appellant to pre-deposit

Issues:
1. Waiver of pre-deposit and stay of recovery sought by the assessee for service tax and penalties imposed under the Finance Act, 1994.
2. Applicability of Notification No. 12/03-S.T. for exemption from service tax on goods and materials sold during job-work.
3. Dispute regarding the value of goods and materials sold by the appellant to the service recipient.
4. Consideration of audit findings in relation to the plea of limitation for payment of service tax.

Analysis:

Issue 1: Waiver of pre-deposit and stay of recovery
The assessee sought waiver of pre-deposit and stay of recovery for service tax and penalties imposed. The Tribunal considered the appellant's argument regarding works-contract service but did not accept it. The show-cause notice invoked the extended period of limitation and demanded differential service tax. The appellant's inconsistent evidence regarding the value of goods and materials sold was noted. Despite the appellant's payment of short-paid service tax identified in audits, a subsequent audit led to a demand for a significant differential service tax amount.

Issue 2: Applicability of Notification No. 12/03-S.T.
The appellant claimed the benefit of Notification No. 12/03-S.T. for exemption from service tax on goods and materials sold during job-work. However, the Tribunal found that the appellant failed to fulfill the condition of separately disclosing the value of such goods/materials in the relevant invoices, rendering the benefit of the Notification prima facie inadmissible.

Issue 3: Dispute over value of goods and materials
The Tribunal noted discrepancies in the appellant's documentation regarding the value of goods and materials sold during job-work. Despite the appellant's claim of attaching a separate work-sheet to invoices, the Tribunal found a lack of evidence supporting this assertion. The failure to separately indicate the value of goods/materials in invoices led to the prima facie inadmissibility of the Notification's benefit.

Issue 4: Consideration of audit findings for limitation
Audit findings played a crucial role in considering the plea of limitation for payment of service tax. The internal audit revealed discrepancies in the appellant's service tax payments, leading to a demand for a substantial differential amount. The Tribunal acknowledged the appellant's compliance with the first audit report but highlighted the subsequent audit's adverse findings. The appellant was directed to pre-deposit a specified amount within a deadline to avail waiver of pre-deposit and stay of recovery for penalties and the remaining service tax amount.

This detailed analysis of the judgment highlights the key issues addressed by the Tribunal, including the waiver of pre-deposit, applicability of Notification No. 12/03-S.T., dispute over the value of goods and materials, and the impact of audit findings on the limitation for payment of service tax.

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