2014 (1) TMI 1605 - AT - Service Tax

Waiver of pre-deposit of service tax, interest and penalty - Violation of Section 68 read with Rule 6 of the Service Tax Rules - Held that - we are not able to infer with any degree or certitude that amounts not received were also included the received value of services provided. In the summary of the adjudication order, the authority records that if no revenue was collected, the assessee did not disclose the same in its chart and hence there is no question of outstanding amounts of service tax not received from defaulter subscribers. The adjudicating authority also records that the demand is arrived at on the basis of assessee s reported figures of revenue collected including service tax deposited - even if there be some error in the adjudication order with regard to determination of the quantum of the liability, considerable responsibility for such possible error is attributable to the assessee - Conditional stay granted.

Issues:
1. Waiver of pre-deposit of service tax, interest, and penalty as assessed by the adjudication order.
2. Confirmation of service tax liability, appropriation of remitted amount, and imposition of penalties.
3. Non-filing of Service Tax 3 returns, short remittance of service tax, and violation of tax rules.
4. Evaluation of liability assessment based on actual value received for taxable services.
5. Granting of waiver of pre-deposit and stay of further recovery proceedings.

Issue 1: Waiver of pre-deposit of service tax, interest, and penalty
The application sought waiver of pre-deposit of service tax, interest, and penalty as assessed by the adjudication order. The Tribunal noted the liability confirmed for the petitioner, the penalty imposed, and the need for remittance of the outstanding amount. The Tribunal, considering the petitioner as an instrumentality of the state, granted waiver of pre-deposit on the condition that the specified amount be remitted within a stipulated period, failing which the waiver would stand rescinded.

Issue 2: Confirmation of service tax liability and penalties
The adjudication order confirmed the service tax liability of the petitioner, ordered appropriation of the remitted amount, and imposed penalties for delay in payment and violation of tax rules. The order detailed the proceedings initiated against the petitioner for non-remittance of service tax, highlighting the recurrent short remittance of service tax and the failure to file Service Tax 3 returns. The order concluded that the petitioner made short remittance of service tax during the specified period, leading to the imposition of penalties under relevant sections of the Act.

Issue 3: Non-filing of Service Tax 3 returns and violation of tax rules
The adjudication order highlighted the petitioner's failure to file Service Tax 3 returns, despite repeated admonitions and non-cooperation. The order noted the short remittance of service tax vis-a-vis actual receipts from customers and the lack of disclosure of revenue not collected from defaulters. The petitioner's obstructionist attitude and non-cooperation led to an independent evaluation by the adjudicating authority, resulting in the confirmation of service tax liability, interest, and penalties.

Issue 4: Evaluation of liability assessment based on actual value received for taxable services
The Tribunal analyzed the adjudication order to determine the basis of liability assessment. It found that the computation of taxable service was based on deducting service tax payments from the taxable value, leading to the conclusion of short collection of service tax by the petitioner. The order clarified that the demand was based on the reported figures of revenue collected, including service tax deposited, without including amounts not received in the calculation.

Issue 5: Granting of waiver of pre-deposit and stay of recovery proceedings
The Tribunal, considering the circumstances and the petitioner's status as an instrumentality of the state, granted waiver of pre-deposit with conditions for remittance within a specified period. Failure to comply would result in rescinding the waiver and dismissal of the appeal. The Tribunal stayed further recovery proceedings pending compliance with the remittance conditions, emphasizing the importance of meeting the obligations under the order.

This comprehensive analysis of the judgment addresses the issues involved in the case, detailing the Tribunal's decision on each aspect of the application for waiver of pre-deposit and the confirmation of service tax liability, interest, and penalties.

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