2013 (1) TMI 218 - AT - Service Tax

Courier Service - Penalty u/s 76 - Non-payment of service tax - Assessee contended that two amounts though included as gross revenue for the months of May & July 2007, inadvertently were also reflected as revenue received during September 2007 and this has happened due to introduction of new software programme - the same is only a clerical mistake - Held that - Since dispute relates to verifiable facts appellant should produce necessary documentary evidence like invoices relating to the two payments, the details of cheques under which the amounts were received from the service recipient and Bank statement (self certified copy of computer generated statement) and other relevant documents to show that this was merely due to arithmetical mistake. For fresh consideration remand back to AO

Summary

Issues:
1. Taxable service under "Courier Service" category - confirmation of service tax demand, interest, and penalty.
2. Discrepancies in ST3 returns for the period April 2007 to September 2007 leading to short payment of service tax.
3. Explanation by the assessee regarding the alleged non-payment of service tax in September 2007 due to a clerical mistake.
4. Production of necessary documentary evidence to support the claim of arithmetical mistake in including certain amounts in the gross revenue for September 2007.
5. Decision on the appeal and stay petition.

Analysis:

Issue 1:
The appellants were engaged in providing taxable service under the "Courier Service" category. The original authority confirmed a service tax demand of Rs. 7,47,656/- along with interest and imposed a penalty under Section 76 of the Finance Act, 1994.

Issue 2:
The department identified discrepancies in the ST3 returns for the period April 2007 to September 2007, alleging a short payment of Rs. 14,94,705/- based on two grounds. One ground related to a dispute regarding the value declared being inclusive of service tax, while the other involved non-payment of service tax on a value amounting to Rs. 7,20,31,803/-.

Issue 3:
The assessee explained that the alleged non-payment of service tax in September 2007 was a clerical mistake. They clarified that two amounts received in May and July 2007 were inadvertently included in the gross revenue for September 2007 due to a new software program, despite the tax being paid on time for the respective months.

Issue 4:
The appellants claimed that the inclusion of certain amounts in the gross revenue for September 2007 was an arithmetical mistake. To support this claim, the appellant was directed to produce documentary evidence such as invoices, details of cheques, bank statements, and other relevant documents within 45 days for fresh consideration by the original authority.

Issue 5:
The appellate tribunal allowed the appeal by way of remand, setting aside the orders of the Commissioner (Appeals) and the original authority. The matter was remitted to the original authority for fresh consideration after the production of necessary documentary evidence. The stay petition was also disposed of in light of the decision on the appeal.

This detailed analysis of the judgment highlights the key issues, explanations provided by the assessee, the requirement for documentary evidence, and the final decision of the appellate tribunal.