2017 (5) TMI 284 - AT - Service Tax

Tribunal Upholds Penalty for Tax Non-Compliance

The Tribunal upheld the confirmation of demand and penalty imposition against M/s Chaitanya Engineering. The appellant's claim of utilizing CENVAT Credit ... VCES declaration - rejection on the ground that appellant failed to file proper and correct VCES declaration - the appellant claims to avail CENVAT credit but the appellant has not filed any ST-3 returns prior to 01.03.2013 nor they had paid any taxes till that date. The appellant, however, claimed to have been registered since long - Held that: - The claim of CENVAT Credit taken and/or utilized crystallizes only when the assessee files return before Revenue - CENVAT Credit can only be availed by filing the return, if no return is filed, it cannot be said that any liability was discharged. In the instant case, it is likely that the appellants may have availed input services on which credit of ₹ 2,94,448/- might have been available to them. However, if the same is not taken by filing the return, it cannot be considered as CENVAT Credit. Furthermore, any duty payment is to be reflected by way of filing the return. In absence of return, it cannot be said that any CENVAT Credit which might have been available to them was actually paid to discharge any duty liability. It is apparent that the appellant's total duty liability was ₹ 14,64,374/- and they have filed VCES declaration declaring the liability of ₹ 11,69,927/- and thus, it is apparent that the appellant has not correctly declared his duty liability as on 01.03.2013 in the VCES declaration form - VCES rightly rejected - appeal dismissed - decided against appellant. Issues:Confirmation of demand and imposition of penalty based on VCES declaration and CENVAT Credit utilization.Analysis:1. Confirmation of demand and penalty imposition: The appellant, M/s Chaitanya Engineering, filed an appeal against the confirmation of demand and penalty imposed by the lower authorities. The Chartered Accountant for the appellant argued that the demand was incorrectly confirmed, and the penalty was wrongly imposed. The appellant had initially declared a liability of &8377; 4,63,786/- under the VCES scheme on 29.10.2013. However, the Revenue calculated their liability to be &8377; 14,64,374/- as of 01.03.2013. The appellant later filed a revised declaration of &8377; 11,69,927/-, claiming CENVAT Credit of &8377; 2,94,448/- for the period before 01.03.2013. The appellant contended that since they had utilized the CENVAT Credit before 01.03.2013, their net liability on that date was only &8377; 11,69,927/-. However, it was revealed that the appellant had not filed ST-3 returns or disclosed their liability of Service Tax before 01.03.2013.2. CENVAT Credit utilization and duty liability: The Tribunal observed that the appellant's claim of utilizing CENVAT Credit before 01.03.2013 was erroneous. The liability of duty could be discharged either by cash payment or CENVAT Credit, but CENVAT Credit could only be availed by filing returns. Since the appellant had not filed any returns before 01.03.2013, it could not be assumed that any liability was discharged through CENVAT Credit. The appellant's duty liability was determined to be &8377; 14,64,374/-, and their VCES declaration of &8377; 11,69,927/- was deemed incorrect. The Tribunal concluded that the appellant had not accurately declared their duty liability as of 01.03.2013 in the VCES declaration form, leading to the rejection of the declaration.3. Dismissal of the appeal: Due to the non-filing of returns, non-payment of taxes until 01.03.2013, and the failure to file a proper and correct VCES declaration despite the opportunity provided, the Tribunal dismissed the appeal. The Tribunal emphasized that without filing returns and reflecting duty payments, any CENVAT Credit claimed but not utilized through proper channels cannot be considered as discharged liability. Therefore, the appeal was dismissed on the grounds of incorrect declaration of duty liability and non-compliance with tax filing requirements.In conclusion, the Tribunal upheld the confirmation of demand and penalty imposition, highlighting the importance of accurate declaration of duty liability, proper utilization of CENVAT Credit, and compliance with tax filing obligations to avoid penalties and appeal dismissals.