2018 (1) TMI 560 - AT - Service Tax

Tribunal adjusts service tax liability, absolves penalty due to lack of evidence.

The Tribunal partially allowed the appeal, setting aside the order and remanding the matter for recalculating service tax liability within the normal ... Demand of service tax - difference between the value shown in the ST-3 returns vis-à-vis TDS certificate - Held that: - the appellant was not able to explain the difference in the value shown in the TDS certificate vis-a-vis the ST-3 returns filed by it before the department. Thus, the demand confirmed against the appellant for short payment of service tax of ₹ 1,23,769/- is proper and justified - that part of service tax demand is barred by limitation of time inasmuch as the show cause notice was issued beyond the normal period of limitation provided under Section 73(1) of the Act. The matter is remanded to the original authority for quantification of the service tax liability along with interest within the normal period of limitation - Appeal allowed in part by way of remand. Issues:Difference in value between ST-3 returns and TDS certificate, liability for service tax payment, applicability of time limitation for show cause notice, burden of proof on department for invoking extended period of limitation, imposition of penalty.Analysis:1. Difference in Value:The case involved a variance in the value reported in the ST-3 returns and the TDS certificate. The discrepancy amounted to Rs. 11,98,326, leading to a service tax liability of Rs. 1,23,769 on the appellant. The appellant contended that the service provider had already paid Central Excise duty, thus absolving them of the service tax liability.2. Time Limitation for Show Cause Notice:The Tribunal found that part of the service tax demand was time-barred as the show cause notice was issued beyond the normal period stipulated under Section 73(1) of the Act. Since no concrete evidence was presented by the department regarding the appellant's involvement in fraudulent activities to evade tax, the extended time limit was deemed inapplicable.3. Burden of Proof and Penalty Imposition:The Tribunal emphasized that the burden of proof regarding suppression or fraud lies entirely with the department. Citing the Uniworth Textiles Ltd. case, it was noted that without substantial evidence of malafides, the extended time limit cannot be invoked. Consequently, the imposition of an equal penalty was deemed unjustified.4. Judgment and Remand:The Tribunal set aside the impugned order, remanding the matter to the original authority for recalculating the service tax liability within the normal limitation period. The appeal was partially allowed in favor of the appellant for payment of service tax and interest within the prescribed time frame, while the penalty imposed was revoked.This detailed analysis of the judgment highlights the key issues addressed by the Tribunal, including the discrepancy in values, time limitation for notice issuance, burden of proof, and penalty imposition, providing a comprehensive overview of the case.