2022 (4) TMI 563 - AT - Service Tax

Reverse charge mechanism - input services being hiring of motor vehicle, supply of manpower services and legal services - service tax on commission was paid, but delayed payment done - excess availment of CENVAT credit - appellant is a State designated agency for implementation of projects under National e-Governance Plan - non-speaking order or not - suppression of facts or not - extended period of limitation - levy of penalty u/s 78 of FA - HELD THAT - The appellant has contended that the amount of ₹ 14,36,098/-, which was payable under reverse charge mechanism have been paid and the details mentioned in ST-3 return filed by the appellant from time to time for the period. Such payments were made vide various challans as mentioned in the ST-3 return. Copies of the challans were also enclosed before the Commissioner (Appeals) alongwith copy of the return - learned Commissioner (Appeals) has not cared to verify the payments of taxes already made for which facts were led before the Commissioner (Appeals), and summarily rejected the contention observing that on the one hand the assessee is contesting the allegations and simultaneously they have deposited the amount with challan. It is further observed that no supporting / evidences were submitted by the appellant facilitating the Adjudicating Authority to verify the correctness of their claim. There is total dereliction of duty in passing a reasoned order in accordance with law, as the appellant submitted that they have already paid the duty. It was the duty of the Commissioner (Appeals) to get verified such claims. Under no circumstances, such claim of the appellant can be rejected summarily by a non-speaking order. Extended period of limitation - the only allegation in the show cause notice is that the show cause notice is issued pursuant to AG audit - suppression of facts or not - HELD THAT - The allegation in the show cause notice is not sufficient for invocation of extended period of limitation, as admittedly, the appellant has maintained regular books of accounts which are audited by auditor nominated by the AG of State. Further, the appellant is registered assessee and filed their returns regularly and deposited the taxes as admitted by them. Accordingly, in the facts and circumstances of the case, the extended period of limitation is not invocable and accordingly the demand for the period April, 2012 to March, 2015 is set aside on this ground. CENVAT Credit - HELD THAT - The amount of ₹ 42,467/- and ₹ 1,49,752/- are not contested as stated by the learned Counsel at the time of hearing and further states that the said amounts has already been deposited. Further, it is found that the Commissioner (Appeals) has not recorded and not given any finding with respect to the ground of taking of excess credit of ₹ 3,27,503/-, which has been explained by the appellant, that the same was due to cenvat credit taken short, which was noticed later on in the month of September, 2014 when audit was finalised. In view of the cogent explanation given by the assessee, this ground is also allowed in favour of the appellant and the demand of cenvat credit is set aside. Levy of penalty u/s 78 of FA - HELD THAT - There is no contumacious conduct of fraud or suppression of facts by the appellant, the penalty imposed under Section 78(1) ₹ 3,69,970/- or (₹ 3,27,503/- ₹ 42,467/-) is set aside - Further penalty of ₹ 1,49,752/- under section 78 is also set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Alleged non-payment of service tax under reverse charge mechanism.
2. Delayed payment of service tax on received commission.
3. Irregular availment of cenvat credit.
4. Excess availment of cenvat credit.
5. Allegation of wilful suppression of facts by the appellant.
6. Imposition of penalties under Section 78.

Issue 1: Alleged non-payment of service tax under reverse charge mechanism.

The appellant, a Government company, was alleged to have not deposited service tax under the reverse charge mechanism for hiring motor vehicles, supply of manpower services, and legal services. Additionally, a delayed payment of service tax on received commission was noted. The appellant contended that the due amount had been paid, supported by challans and ST-3 return filings. The Commissioner (Appeals) summarily rejected this contention without verifying the payments made, leading to a lack of reasoned order. The Tribunal held that the duty of the Commissioner (Appeals) was to verify such claims, and the extended period of limitation was not invocable. Consequently, the demand for the period in question was set aside.

Issue 2: Irregular availment of cenvat credit.

The appellant was accused of irregularly availing cenvat credit, with discrepancies in the closing and opening balances of cenvat credit. The appellant explained that this was due to an error of omission while accounting for input credit, discovered during an audit. The Tribunal accepted the explanation provided by the appellant and set aside the demand related to the irregular availment of cenvat credit.

Issue 3: Allegation of wilful suppression of facts by the appellant.

The show cause notice alleged that the appellant had wilfully suppressed facts to evade payment of service tax, justifying the invocation of the extended period of limitation. However, the Tribunal found that the appellant maintained regular books of accounts, filed returns promptly, and paid taxes as required. As a result, the extended period of limitation was deemed inapplicable, and the demand for the specified period was set aside.

Issue 4: Imposition of penalties under Section 78.

The Tribunal found no contumacious conduct of fraud or suppression of facts by the appellant. Consequently, the penalties imposed under Section 78 were set aside, leading to the modification of the impugned order in favor of the appellant.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the demands related to service tax, irregular cenvat credit availment, and penalties under Section 78. The judgment highlighted the importance of verifying claims, maintaining proper records, and the inapplicability of the extended period of limitation in the absence of wilful suppression of facts.