2023 (10) TMI 1163 - AT - Service Tax

Demand of Differential Service Tax alongwith interest and penalty - mismatch in figures shown in the ST-3 Returns and the figures shown in the Balance Sheet - it is alleged that appellant could not substantiate their claim towards the excess payment of Service Tax by way of various challans and did not produce the relevant copies of challans - HELD THAT - Admittedly, the Department has acceded to the request of the appellant and has arrived at the net Service Tax payable by the Kolkata Unit. The appellants were claiming that they have submitted several challans which were not reflected in the ST-3 Returns, but could not produce copies of such challans. On enquirty, even before the Tribunal, no such copies of the challans could be produced. It is not possible to take a view that they have themselves did not account for such several challans during the period of more than three years and did not reflect the same in the ST-3 Returns till the issue was pointed out by the Service Tax Audit Team. It is not clear as to how the appellant has himself not accounted for the challans during the period of three years. Further as the appellant has unit at Bhubaneswar, there may be possibility these challans have been used for Service Tax to be paid by that Unit. Unless, the entire transaction of Kolkata Unit vis- -vis their Bhubaneswar Unit is undertaken, the fact of challans not accounted, cannot be examined. Since the issue pertains to 2007-2008 to 2009-10, at this stage, it would not possible for two Jurisdictional authorities to undertake this huge work to verify the appellant s claim. Therefore, as the appellant is not in a position to bring any proper clear evidence towards his explanation, it is deemed fit to dismiss their appeal. The appellant is required to pay the confirmed demand along with interest - Noting that the appellant has also made same claims before the lower authorities that they have paid the excess Service Tax, the penalty imposed on the appellant under Section 78 of the Finance Act, 1944, is reduced to 25% subject to the appellant paying the confirmed demand along with interest and reduced to 25% penalty, within 30 days from the date of communication of this order. Appeal disposed off.

Summary

Issues involved: Audit findings on differential Service Tax payment, discrepancy in turnover figures, non-accounting of challans in ST-3 Returns.

Audit Findings on Service Tax Payment: The audit team conducted an examination of the appellant's Books of Accounts for the period 2007-08 to 2009-10, comparing figures from the Balance Sheet with those in the ST-3 Returns. A demand was raised on the differential Service Tax amount, specifically focusing on the Kolkata Unit. The Department removed the turnover of the Bhubaneswar Unit, resulting in a confirmed demand of Rs.6,65,716 as per the showcause notice.

Discrepancy in Turnover Figures: The appellant contended that they had paid Rs.55,23,130 during the disputed period, exceeding the Department's claim of Rs.53,31,259. They argued that certain challans, not reflected in the ST-3 Returns, accounted for the excess payment. However, the authorities did not consider these challans as the appellant failed to provide relevant copies to substantiate their claim, leading to the confirmation of the demand.

Non-Accounting of Challans in ST-3 Returns: The appellant claimed an excess payment of Rs.1,98,871, attributing it to unaccounted challans. Despite their assertion, no copies of the challans were produced, even upon inquiry before the Tribunal. The Tribunal noted the absence of these challans in the Returns over a three-year period, expressing skepticism over the appellant's explanation for the oversight. Given the complexity of reconciling transactions between the Kolkata and Bhubaneswar Units, the Tribunal deemed it impractical for the authorities to undertake such verification at this stage.

Final Decision: The Tribunal dismissed the appeal, requiring the appellant to pay the confirmed demand along with interest. The penalty imposed under Section 78 of the Finance Act, 1944, was reduced to 25% provided the appellant complies within 30 days; otherwise, the penalty would revert to 100% of the confirmed demand.