2024 (10) TMI 1402 - AT - Service Tax

Non discharge of service tax - Appellant was providing taxable services under the category of Maintenance Repair Service, Man Power Recruitment Agency Service Construction (Commercial Industrial) Services to the service recipient - Demand of service tax Education Cess Secondary Higher Education Cess - HELD THAT - As the appellant was well aware that he was providing taxable services and short paid the service tax, even after issuing invoices indicating the services tax payable and collecting the same from the service recipient. They were not filing the ST-3 returns on time in the manner as specified in law. They have suppressed the information with intend to evade payment of taxes. Accordingly, the demand by invoking the extended period of limitation and penalty imposed cannot be disputed with. As decided in Afsar Tour and Travels 2018 (8) TMI 1281 - CESTAT HYDERABAD leviable of service tax does not change that whether or not they have collected same from their clients. We cannot accept a new ground of liability of service tax at this stage, proposed by the Learned Counsel for the appellant because there was never a point of contention at the time of Order-in-Original or Order-in-Appeal. We therefore, find the Learned Lower Authority was correct and confirmed the demands along with interest and imposing penalties. Appeal dismissed.

Issues Involved:

1. Confirmation of service tax demand and associated penalties.
2. Dispute over the inclusion of provident fund in taxable value.
3. Invocation of extended period for demand and recovery.
4. Imposition of penalties under various sections of the Finance Act, 1994.
5. Appellant's contention regarding quantification and waiver of penalties.

Detailed Analysis:

1. Confirmation of Service Tax Demand and Associated Penalties:

The core issue revolves around the confirmation of a service tax demand amounting to Rs. 6,69,879/- against the appellant, along with interest under Section 75 of the Finance Act, 1994. The appellant was found to have provided taxable services under categories such as Maintenance & Repair Service, Manpower Recruitment Agency Service, and Construction Services, without discharging the due service tax. The adjudicating authority confirmed the demand after allowing certain deductions, such as amounts received for services prior to their taxability date and service tax already paid by the service recipient, Hindalco Industries Ltd.

2. Dispute Over the Inclusion of Provident Fund in Taxable Value:

A significant point of contention was whether the amount related to the provident fund should be included in the taxable value. The appellant argued for its exclusion, but the adjudicating authority and the First Appellate Authority held that no deduction under the head "Provident Fund" is permissible. The authorities relied on a CBEC Circular which clarified that service tax is to be charged on the full amount of consideration for the supply of manpower, including recovery of staff costs such as salary and other contributions. Thus, the demand for service tax on the provident fund amount was upheld.

3. Invocation of Extended Period for Demand and Recovery:

The Original Authority invoked the extended period under the proviso to Section 73(1) of the Finance Act, 1994, for demand and recovery. It was observed that the appellant failed to disclose the gross amount received for taxable services to the department, which amounted to suppression of facts with an intent to evade tax. The appellant's actions, such as not filing ST-3 returns on time and not depositing collected service tax, justified the invocation of the extended period. The Tribunal upheld this finding, citing similar cases where the extended period was rightfully invoked due to suppression of facts.

4. Imposition of Penalties Under Various Sections of the Finance Act, 1994:

Penalties were imposed under Sections 77 and 78 of the Finance Act, 1994. The Original Authority noted that the appellant consciously suppressed the value of taxable services and failed to deposit collected service tax, warranting penalties under these sections. The amendment to Section 78, which states that penalty under Section 76 shall not apply if penalty under Section 78 is imposed, was also considered. The Tribunal found no reason to interfere with the penalties imposed, as the appellant's actions demonstrated a clear disregard for the law.

5. Appellant's Contention Regarding Quantification and Waiver of Penalties:

The appellant contended the quantification of the demand and sought waiver of penalties, arguing that they were a petty contractor without sufficient knowledge of service tax provisions. They claimed readiness to pay the due tax as per their calculation chart and requested leniency. However, the authorities found no merit in these arguments, as the appellant was aware of their tax liabilities and had collected service tax from the service recipient. The Tribunal upheld the findings of the lower authorities, dismissing the appeal for lack of merit.

Conclusion:

The appeal was dismissed, with the Tribunal affirming the findings of the lower authorities regarding the service tax demand, inclusion of provident fund in taxable value, invocation of the extended period, and imposition of penalties. The appellant's arguments were found unconvincing, and the order was pronounced in open court on 24 October 2024.

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