2018 (10) TMI 899 - AT - Service Tax

Short payment of Service Tax - period April 1994 to March 2004 - the Ld. Advocate has highlighted several errors in the calculation attached by the department in the Show Cause Notice. It has also been submitted that in many cases excess Service Tax has been deposited by DOT but the same was not taken into account - Held that - Considering the fact that even at the time of adjudication i. e., in 2008 the appellant was unable to submit documentary evidence to support their arguments, no useful purpose will be served by remanding the matter for further verification and recalculation. The Adjudicating Authority has already restricted the demand to the period of five years from the date of Show Cause Notice. In the facts and circumstances of the present case, we have no option but to up-hold the demand confirmed by Adjudicating Authority with interest. Penalty - Held that - Penalty waived by taking recourse to Section 80 of the Finance Act, 1994 which was part of the Finance Act during the relevant time - during the transitioning of service from DOT to BSNL lot of confusion in accounts was prevalent which appear to got settled only from September 2003. Appeal allowed in part.

Issues:
1. Short payment of Service Tax by the appellant.
2. Demand of Service Tax and interest by the department.
3. Challenge to the impugned order.
4. Representation by the appellant's advocate.
5. Arguments presented by the appellant's advocate.
6. Justification of the impugned order by the department.
7. Examination of documentary evidence.
8. Errors in calculation highlighted by the appellant's advocate.
9. Decision on penalty and waiver.

Analysis:

1. The appeal was against the Order-in-Original regarding short payment of Service Tax amounting to ?1,07,93,581/- during the period from July 1994 to March 2004 by the appellant, a provider of telecommunication services in Assam. The Adjudicating Authority upheld the demand of ?93,48,698/- for the period of April 1999 to March 2004, dropping the rest of the demand beyond five years.

2. The appellant challenged the impugned order, arguing that during the period under DOT, Service Tax was paid, but no documentary evidence was submitted. The advocate highlighted errors in the department's calculation, stating that excess Service Tax paid by DOT was not considered, and exemptions were not applied correctly.

3. The department justified the order, emphasizing the lack of documentary evidence for the period under DOT. The Adjudicating Authority declined to consider the appellant's submissions due to the absence of supporting documents.

4. The advocate for the appellant advanced arguments regarding the payment of Service Tax during the transition from DOT to BSNL, pointing out errors in the department's calculations and the incorrect application of exemptions.

5. After hearing both sides and examining the records, the Tribunal found that no useful purpose would be served by remanding the matter for further verification. The demand was upheld for the five-year period from the Show Cause Notice date, with interest, but the penalty was waived under Section 80 of the Finance Act, 1994, considering the confusion during the transition from DOT to BSNL.

6. The Tribunal modified the impugned order, partly allowing the appeal and waiving the penalty due to the circumstances surrounding the transition period, settling the confusion in accounts from September 2003.

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