2018 (12) TMI 384 - AT - Service Tax

Tribunal Upholds Service Tax Evasion Demand for Security Agency, Maintenance Services

The Tribunal upheld the demand for service tax evasion by the appellants engaged in security agency and maintenance services, finding manipulation of ... Undervaluation - security agency service - manpower supply service - suppression of taxable value - it was alleged that value of taxable service declared by them under ST 3 returns was much less than what was declared in the balance sheet and books of accounts of the appellant firm for various financial years - demand of service tax alongwith Interest and penalties - extended period of limitation. Demand on the ground that the appellant have evaded Service Tax by suppressing the taxable value in their ST 3 returns on taxable service namely, security agency service and manpower supply service - Held that:- The appellants have not contested that the figures given in the balance sheet which they have submitted before the investigating agency are not factually correct. It is also an admitted fact that the appellant had been indulging in fabricating and forging the figures given in the ST 3 returns vis-à-vis those given in the balance sheets. Even the duplicate (not based on real figures) were also prepared fraudulently and submitted before Departments Audit team - no evidence has been adduced by the appellant to controvert the facts that the taxable value declared by the appellant in ST 3 returns were not wrong and manipulated. We hold that demand and confirmation of service tax under section 73(1) of Finance Act, 1994 by the adjudicating authority is legally correct in principal. Quantum of service tax demand - Held that:- The adjudicating authority need to examine the claim made by the appellant that the value of certain exempted services namely, the construction of road and its maintenance provided by them ought to have been deducted from the total taxable value before determination of demand of service tax from them - this fact need to be checked by the adjudicating authority whether the claim which is being made by the appellant is factually correct or not and if they have been engaged in the activity of construction of roads and its maintenance, same need to be considered and taxability of the same to be checked as per the prevalent provisions of the Finance Act, 1994 at the relevant time. Whether the service tax is correctly been calculated on receipt basis before 1.7.2011 and on accrual basis after 1.7.2011? - Held that:- As per the provisions of service tax before 1.7.2011, the authorities should have determined the actual amount received in a financial year while demanding the service tax. However, this fact can only be checked at the level of original adjudicating authority - for the purpose of determining the financial year wise receipt of Service tax value prior to 1.7.2011, the adjudicating authority need to examine the balance sheet and other statement of accounts to re-determine the financial year wise receipts as claimed by the learned advocate and to re-determine the demand of service tax for particular financial year - matter on remand. Cum-duty-benefit - Held that:- This fact also needs to be examined at the level of original adjudicating authority. As we find from the show cause notice that assessee have been collecting service tax on the value which is given by them on the invoices and which have been taken in the balance sheet However, since all the details are not available before us, we direct the adjudicating authority to examine the appellants claim in this regard. Extended period of limitation - Held that:- This is an established case of intentional evasion of service tax by manipulating and forging the figures of the taxable value for levy of service tax by the appellant and therefore, we hold that the demand for extended time period is rightly invoked. Appeal allowed by way of remand. Issues:1. Appellants' evasion of Service Tax by manipulating taxable value.2. Applicability of service tax on receipt basis before and after 1.7.2011.3. Exclusion of exempted services from taxable value.4. Claim of being a pure agent for certain expenses.5. Period of limitation for demand.6. Cum-duty benefit calculation.7. Vagueness in the show cause notice.Issue 1: Appellants' Evasion of Service Tax:The appellants were engaged in security agency, manpower supply, and maintenance services. The department alleged that the appellants suppressed taxable values, leading to a Show Cause Notice. The appellants contended that pre-1.4.2011, service tax was on a receipt basis. However, the balance sheet figures were on accrual basis. The Tribunal found that the appellants manipulated figures in ST 3 returns and balance sheets, leading to evasion. The Tribunal upheld the demand of service tax under section 73(1) of the Finance Act, 1994. The Tribunal directed a reexamination of the claimed exempted services' value and cum-duty benefits.Issue 2: Applicability of Service Tax Basis:The appellants argued for a distinction in service tax calculation basis pre and post-1.7.2011. The Tribunal agreed that pre-1.7.2011, service tax should be on actual receipts. It directed the adjudicating authority to reevaluate financial year-wise receipts based on the balance sheet.Issue 3: Exclusion of Exempted Services:The appellants claimed that construction and maintenance services were exempted from service tax. The Tribunal directed the authority to verify this claim and assess the taxability of these services under the Finance Act, 1994.Issue 4: Claim of Being a Pure Agent:The appellants argued they acted as pure agents for certain expenses. They cited a Supreme Court judgment. However, the Tribunal found the appellants liable to discharge service tax on the gross amount received from clients, citing relevant case law.Issue 5: Period of Limitation:The appellants argued that the demand was beyond the limitation period as they regularly filed ST 3 returns. The Tribunal held the extended period was justified due to intentional evasion by the appellants.Issue 6: Cum-Duty Benefit Calculation:The Tribunal directed the authority to examine the cum-duty benefit claim by the appellants to ensure correct calculation at the original adjudication level.Issue 7: Vagueness in Show Cause Notice:The appellants contended the show cause notice was vague regarding specific services for which service tax was demanded. The Tribunal did not find merit in this argument and upheld the demand for service tax.This judgment highlights the Tribunal's thorough analysis of the issues raised by the appellants regarding service tax evasion, calculation basis, exemption of services, pure agent status, limitation period, cum-duty benefits, and clarity of the show cause notice. The Tribunal upheld the demand for service tax evasion but directed a reevaluation on certain aspects, emphasizing compliance with the Finance Act, 1994 provisions.