2018 (12) TMI 167 - AT - Service Tax

Telecom company wins appeal, penalty waived under Finance Act. Calculation errors cited.

The appellant, a telecommunication services provider, was found to have short paid Service Tax over a specific period. The Adjudicating Authority upheld a ... Short payment of service tax - telecommunication services - demand pertains to a very old period from April 1994 to March 2004 - prayer to remand the case - Held that:- Considering the fact that even at the time of adjudication i. e., in 2008 the appellant was unable to submit documentary evidence to support their arguments, no useful purpose will be served by remanding the matter for further verification and recalculation. The Adjudicating Authority has already restricted the demand to the period of five years from the date of Show Cause Notice. In the facts and circumstances of the present case, we have no option but to up-hold the demand confirmed by Adjudicating Authority with interest. Penalty - Held that:- We are inclined to waive the same by taking recourse to Section 80 of the Finance Act, 1994 which was part of the Finance Act during the relevant time. Appeal allowed in part. Issues:1. Short payment of Service Tax by the appellant during a specific period.2. Demand of interest on late payment of Service Tax.3. Challenge to the impugned order regarding Service Tax demand, interest, and penalty.4. Exemption of certain services provided by DOT/BSNL.5. Calculation errors in the Show Cause Notice.6. Lack of documentary evidence for Service Tax payments during the disputed period.7. Consideration of excess Service Tax deposited by DOT.8. Decision on penalty waiver under Section 80 of the Finance Act, 1994.Issue 1: Short payment of Service Tax by the appellant during a specific periodThe appellant, a provider of telecommunication services, was found to have short paid Service Tax amounting to Rs. 1,07,93,581/- from July 1994 to March 2004. The Adjudicating Authority upheld a demand of Rs. 93,48,698/- for the period of April 1999 to March 2004, dropping the rest of the demand beyond five years. The appellant challenged this demand in the present appeal.Issue 2: Demand of interest on late payment of Service TaxIn addition to the Service Tax demand, interest on the late payment of Service Tax amounting to Rs. 67,94,198/- was also demanded. The Adjudicating Authority ordered the payment of interest and imposed a penalty equal to the Service Tax demand.Issue 3: Challenge to the impugned order regarding Service Tax demand, interest, and penaltyThe appellant raised several arguments challenging the impugned order. These included the payment of Service Tax during the period when services were provided by DOT, calculation errors in the Show Cause Notice, exemption of certain services, and lack of documentary evidence for Service Tax payments during the disputed period. The appeal was partly allowed, modifying the impugned order and waiving the penalty under Section 80 of the Finance Act, 1994.Issue 4: Exemption of certain services provided by DOT/BSNLThe appellant argued that certain services provided by DOT/BSNL were exempted at the relevant time by Notification No. 3/94-ST dated 13/06/1994. However, the department did not provide the benefit of such exemptions, leading to a dispute regarding the demand calculation.Issue 5: Calculation errors in the Show Cause NoticeThe appellant highlighted errors in the calculation attached by the department in the Show Cause Notice. It was pointed out that in many cases, excess Service Tax had been deposited by DOT, but this was not considered in the final demand calculation.Issue 6: Lack of documentary evidence for Service Tax payments during the disputed periodThe Adjudicating Authority noted that the appellant failed to submit any documentary evidence for the period up to September 2003 when Service Tax was claimed to have been paid by DOT. This lack of evidence led to the Authority declining to consider the submissions made by the appellant.Issue 7: Consideration of excess Service Tax deposited by DOTThe appellant argued that excess Service Tax had been deposited by DOT in certain cases, which was not taken into account in the final demand calculation. However, the appellant could not provide a revised calculation quantifying the revised demand, leading to a decision to uphold the demand confirmed by the Adjudicating Authority.Issue 8: Decision on penalty waiver under Section 80 of the Finance Act, 1994The Tribunal decided to waive the penalty by invoking Section 80 of the Finance Act, 1994, considering the confusion in accounts during the transition from DOT to BSNL. The penalty was waived based on the circumstances and the fact that the appellant was unable to provide documentary evidence even during the adjudication in 2008.---