2022 (6) TMI 673 - AT - Service Tax

Short payment of service tax - non-payment of service tax on reverse charge basis - irregular availement of Cenvat credit - late fee imposed for late filing, non-filing of return - Penalty u/s 77(1) for failing to appear on the date fixed for hearing - Non inclusion of receipts under the head other income in their taxable turnover - HELD THAT - Service tax is not attracted on receipt for replacement of parts received from the manufacturing company - demand set aside. Depot charges - HELD THAT - The same are in the nature of renting of immovable property, or for use of space, accordingly this amount is held to be taxable - demand upheld. Taxability under RCM on legal and professional expenses - HELD THAT - Most of the payments are towards municipal tax, court fee, stamp paper expenses, chartered accountant fee, etc. Thus, it is held that only the amount of Rs. 1,32,626/- is taxable for the period 2016-17 and Rs. 43,751/- for the period April, 2017 to June, 2017. Repair and maintenance expenses - HELD THAT - There is no contract of service entered into with any particular service provider and amount has been incurred for repair and maintenance by way of petty expenses, most of them are below Rs. 1000/-. Accordingly, it is held that there is no service tax attracted on repair and maintenance expenses - demand set aside. Service tax on security charges under Reverse Charge Mechanism - HELD THAT - The appellant have already paid service tax on security services under Reverse Charge basis, and have also declared the same in the returns - demand set aside. Disallowance of Cenvat credit of 3,06,939/- for the period October 2016 to June 2017 - disallowed on the ground that the appellant-assessee have not filed their ST-3 return - HELD THAT - There is no adverse finding as regards not taking of credit within a period of 12 months from the date of the voucher. Accordingly this ground is allowed and it is held that Cenvat credit is allowed to the appellant. Penalties - HELD THAT - Considering the fact that the appellant have maintained proper books of accounts and also paid the service tax. However, for the admitted delay in filing the returns, that the appellant have not filed return for the period October 2016 to June 2017. In this view of the matter, the imposition of penalty under Section 77(1) is upheld, however, the amount of penalty is reduced in total to Rs. 25,000/- - So far the penalty of Rs. 10,000/- is concerned for not appearing on the date of hearing, it is found from the record of personal hearing in the order-in-original, there is no specific default pointed out by the adjudicating authority. Appeal allowed in part.

Summary

Issues involved: Allegation of short payment of service tax, non-payment of service tax on reverse charge basis, irregular availment of Cenvat credit, late fee imposition for late filing, non-filing of return, and penalty under Section 77(1).

Analysis:

1. Short Payment of Service Tax:
The appellant, a dealer in automobiles, faced allegations of short payment of service tax. The main contention was the treatment of receipts under 'other income' in the taxable turnover. Receipts related to warranty claims and depot charges were discussed. The tribunal held that service tax was not applicable on receipts for replacement parts but was taxable on depot charges akin to renting immovable property.

2. Non-Payment of Service Tax on Reverse Charge Basis:
Regarding the taxability under Reverse Charge Mechanism (RCM) on legal and professional expenses, the tribunal found that only specific amounts were taxable for certain periods, while other expenses like repair and maintenance did not attract service tax as there was no contract with a service provider.

3. Irregular Availment of Cenvat Credit:
The disallowance of Cenvat credit for a specific period was based on the appellant's failure to file ST-3 returns. The appellant argued that credit was taken within the permissible timeframe as per the rules. The tribunal allowed the Cenvat credit, emphasizing that there was no adverse finding on the credit timeline.

4. Late Fee Imposition and Penalty under Section 77(1):
Penalties were imposed for late filing and non-filing of returns, along with a penalty for non-appearance. The tribunal upheld the penalty but reduced the amount considering the appellant's proper maintenance of accounts and payment of service tax. The penalty for non-appearance was set aside due to lack of specific defaults noted.

In conclusion, the tribunal allowed the appeal in part, setting aside penalties for non-appearance and certain tax components while upholding tax liabilities on specific items. The Cenvat credit was allowed, and the penalty amount was reduced, considering the circumstances of the case.