2014 (3) TMI 817 - AT - Service Tax

Waiver of pre deposit of Service Tax - demand on the basis of receipt shown in the Balance Sheet in comparison to their ST-3 Returns filed with the Department - Held that - for the period 1.6.2007 onwards, they have not discharged the exact amount of Service Tax against the receipts shown in their balance sheet. The explanation submitted by the Ld. Advocate is that they were under severe financial hardship and thus they have undertaken the trading of textile items from their Head office in Kolkata, and the excess receipts shown in their Balance Sheet against the value in ST-3 returns, are due to the said reason. We find that the said plea has not been raised earlier before the adjudicating authority, hence, prima facie not acceptable at this stage. In these circumstances, we are of the view that the applicant could not be able to make out a prima facie case for total waiver of pre deposit of dues adjudged against them. Even though the applicant has pleaded financial hardship and submitted that the Bank has withdrawn their cash credit facilities but failed to substantiate by producing evidence including the Profit & Loss A/c. for the relevant years. In such circumstances, we are of the view that the claim of the financial hardship has not been substantiated through material particulars - Conditional stay granted.

Summary

Issues Involved:
Application for waiver of pre-deposit of Service Tax, penalty under Section 78, and penalty under other Provisions of Finance Act, 1994.

Analysis:
The applicant sought waiver of pre-deposit of Service Tax amounting to Rs.3.43 Crores along with penalties imposed under Section 78 and other provisions of the Finance Act, 1994. The applicant's representative argued that the services provided during the period from April 2005 to March 2009 were not covered under Mining and Minerals services, which became effective from 1/06/2007. They claimed that no service tax was payable on these services, which the Department intended to levy under Business Auxiliary Services. However, the Department confirmed the demand for the period from 1/06/2007 to March 2009 based on the balance sheet receipts compared to the ST-3 Returns filed, alleging non-taxable receipts including trading of Textile items. The applicant's plea of financial hardship due to trading activities was not raised earlier before the adjudicating authority, which was not accepted at that stage. The Tribunal found that the applicant failed to substantiate their financial hardship claim with evidence, such as the Profit & Loss A/c for the relevant years. Consequently, the Tribunal directed the applicant to deposit 50% of the confirmed Service Tax amount within eight weeks, failing which the appeal would be dismissed.

The Revenue contended that despite repeated summons and correspondences, the applicant did not provide all relevant documents regarding their activities. Based on work orders, it was established that the applicant was engaged in processing goods for clients from 2005 to 2009, classifying the service under Business Auxiliary Services. The Department noted a discrepancy in the gross receipts between the ST-3 Returns and the Balance Sheet post-1/06/2007, which the applicant failed to explain before the Ld. Commissioner. The Department's position was that these differences were attributable to services related to Mining and Mineral services. The Tribunal observed that the applicant did not cooperate with the investigation/adjudication, as reflected in the orders of the Ld. Adjudicating Authority. The Department concluded that the applicant provided Business Auxiliary Services before 1/06/2007 and acknowledged liability for service tax under 'Mining and Mineral Services' from 1/06/2007 onwards. However, the Department argued that the exact Service Tax amount was not paid post-1/06/2007 based on the balance sheet receipts. The Tribunal found the applicant's financial hardship plea unsubstantiated due to lack of material evidence and directed the deposit of 50% of the confirmed Service Tax amount within eight weeks to stay the recovery of the balance dues during the appeal's pendency.