2024 (1) TMI 726 - AT - Service Tax

Recovery of short paid service tax - ex-parte order - appellant was called to explain the difference between the figures of Form 26AS and ST-3 returns, but appellant chose not to join investigation and not to join adjudication - Extended period of Limitation - HELD THAT - In this case, it is a fact on record that the demands have been raised against the appellant on differential figures between Form 26AS and ST-3 returns. It is also a fact on record that the appellant was called to explain the difference between the figures of Form 26AS and ST-3 returns but the appellant chose not to file the reconciliation statement. It is also a fact on record that appellant did not join adjudication proceedings, in that circumstances, the Revenue could not find out why there is a difference between figures of Form 26AS and ST-3 returns which is the route cause of demand of service tax from the appellant in this case. In that circumstances, it is the duty of the appellant to explain why there is difference between the figures of Form 26AS and ST-3 returns which the appellant failed to do so during investigation as well as during adjudication. In that circumstances, to meet end of justice, the appellant is required to file reconciliation statement before the Adjudicating Authority for verification and thereafter to find out whether any difference exist or not. Extended period of limitation - HELD THAT - The extended period is not invokable as Form 26 AS is public document and the said document was available on record during the period 2014-2015 onwards with the Department, in that circumstances, demand pertaining to extended period of limitation is not sustainable and the same is set aside. Matter remanded back to the Adjudicating Authority to find out from the reconciliation statement to be submitted by the appellant within 30 days from the receipt of this order and if at all there is any difference then demand can be raised against the appellant. In the facts and circumstances of the case, no penalty can be imposed on the appellant. Appeal allowed in part.

Summary

Issues:
The appeal against the impugned order confirming service tax demand due to short payment.

Details of Judgment:

1. Background and Adjudication Process:
The appellant, engaged in authorized service station services, faced a demand for service tax due to discrepancies between Form 26AS and ST-3 returns. Despite ample opportunities, the appellant did not participate in the investigation or adjudication process. The adjudication authority passed an ex-parte order, imposing tax, interest, and penalty. The appellant challenged this before the Commissioner (Appeals) on grounds of no difference in figures and failure to provide a reconciliation statement.

2. Appellant's Arguments:
The appellant argued that the show cause notice was solely based on Form 26AS data, with no independent investigation. Citing relevant case laws, the appellant contended that the extended period of limitation was not applicable, as Form 26AS is a public document available since 2014-2015. The appellant expressed readiness to produce a reconciliation statement if needed.

3. Department's Response:
The authorized representative supported the impugned order, highlighting the appellant's non-cooperation in explaining the discrepancies between Form 26AS and ST-3 returns.

4. Tribunal's Decision:
After hearing both parties and examining the records, the Tribunal noted the lack of cooperation from the appellant in providing a reconciliation statement. It emphasized the appellant's duty to explain the differences between the two sets of figures. While acknowledging the inapplicability of cited case laws due to lack of appellant's participation, the Tribunal agreed that the extended period of limitation did not apply. Consequently, it set aside the demand pertaining to the extended period but remanded the case to the Adjudicating Authority for verification based on the reconciliation statement to be submitted within 30 days. No penalty was imposed on the appellant.

5. Conclusion:
The appeal was partly allowed, directing the Adjudicating Authority to proceed as per the Tribunal's instructions in the remand proceedings, emphasizing the importance of providing the reconciliation statement for further assessment.