2024 (1) TMI 394 - HC - Service Tax

Substantial question of law or not - difference of figures between balance sheet and ST-3 return - error in not remanding the matter to the authorities below for verification of the challans - time limitation - demand of excess paid service tax and penalty - non-consideration of relevant fact of production of documents - HELD THAT - In this appeal filed by the assessee under Section 35G of the Central Excise Act, 1944 the Court is required as to whether any substantial question of law arises for consideration. The matter here is entirely factual and the adjudicating authority, the first appellate authority and the learned tribunal have appreciated and re-appreciated the factual position and rejected the contentions raised by the appellant. In fact, the learned tribunal has granted a partial relief to the appellant by reducing the penalty to 25%. Thus, there are no question of law much less substantial question of law is arising for consideration. The appeal fails and the same is dismissed.

Summary

Issues Involved:
The appeal filed by the assessee under Section 35G of the Central Excise Act, 1944 as made applicable to the Service Tax under Section 83 of the Finance Act, 1994 is directed against the Final order passed by the Customs, Excise & Service Tax Appellate Tribunal, Kolkata. The assessee raised several substantial questions of law for consideration.

Issue i:
The question of whether the difference of figures between the balance sheet and ST-3 return can be made on the basis of demand maintainable in law since the balance sheet figure is based on bills received and ST-3 return figure is based on the payment received was raised.

Issue ii:
The contention regarding whether the Tribunal erred in not remanding the matter to the authorities below for verification of the challans submitted by the appellant, which was admitted by the Adjudicating Authority, was brought up.

Issue iii:
The matter of whether the demand is barred by limitation and if the Tribunal erred without addressing anything on the point of limitation was raised.

Issue iv:
The question of whether the Tribunal was justified in confirming the demand and imposing a penalty even after admitting that the appellant had claimed the excess payment of service tax and produced evidence before the Adjudicating Authority was raised.

Issue v:
The issue of whether the Tribunal's order was considered perverse for not taking into account the relevant fact of the production of documents and relying on the inference of the possibility of the payment challans being connected with other units at Bhubaneswar was raised.

Issue vi:
The contention regarding whether the Tribunal erred in dismissing the appeal of the appellant without coming to a specific finding on the documents produced before the adjudicating authority, and on the pretext of difficulty of the jurisdictional Commissionerates' inability to verify the claim of the appellant, making the demand unjustified, was raised.

Issue vii:
The question of whether the Tribunal's order was otherwise bad in law in facts was also considered.

After hearing the learned counsel for the parties, the Court found that the assessee was aggrieved by the concurring findings of fact recorded by three authorities. The Tribunal, after considering all facts, concluded that no substantial question of law, much less a substantial question of law, arose for consideration. The appeal was dismissed, and a partial relief was granted by reducing the penalty to 25%.