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of <h1>Service tax recovery upheld with penalty under Section 129(2)(c) for suppression of CENVAT Credit facts</h1> <h3>M/s Velocity Propbuild Pvt. Ltd. Versus Commissioner of Central Excise & CGST, Noida</h3> M/s Velocity Propbuild Pvt. Ltd. Versus Commissioner of Central Excise & CGST, Noida - TMI 1. ISSUES PRESENTED and CONSIDERED 1. Whether the Show Cause Notice issued under the Sabka Vishwas (Legacy Dispute Resolution) Scheme (SVLDRS), 2019 is barred by limitation of one year prescribed under Section 129(2)(c) of the Finance Act, 2019, thereby rendering the demand proceedings void? 2. Whether the demand of service tax on forfeited advance amount under Section 66E(e) of the Finance Act, 1994 is legal and proper? 3. Whether the extended period of limitation under the Finance Act, 1994 and CGST Act, 2017 is invokable for the demand of service tax in this case? 4. Whether the appellant was entitled to avail and adjust CENVAT Credit against the service tax liability declared under SVLDRS, 2019? 5. Whether penalty under Section 78 of the Finance Act, 1994 and interest under Section 75 of the Finance Act, 1994 are imposable on the appellant for the service tax demand? 6. Whether non-filing of ST-3 returns and non-declaration of CENVAT Credit in the statutory returns affects the admissibility of credit and the overall tax liability? 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Limitation under Section 129(2)(c) of SVLDRS, 2019 for issuance of Show Cause Notice Relevant Legal Framework and Precedents: Section 129(2)(c) of the Finance Act, 2019 provides that in cases of voluntary disclosure under SVLDRS, if any material particular furnished in the declaration is subsequently found to be false, it shall be presumed as if the declaration was never made and proceedings under applicable indirect tax enactments shall be instituted within one year of issue of the discharge certificate. Court's Interpretation and Reasoning: The Court interpreted the provision to mean that the department must find the declaration to be false within one year of issuance of the discharge certificate to initiate proceedings. However, the provision does not mandate that the Show Cause Notice itself must be issued within one year. The subsequent proceedings are governed by the relevant provisions of the Finance Act, 1994. Key Evidence and Findings: The discharge certificate was issued on 19.03.2020; the department initiated verification and issued the Show Cause Notice on 28.04.2021. The department found the declaration false within one year of the discharge certificate issuance. Application of Law to Facts: The Show Cause Notice issued after one year was held not barred by limitation under Section 129(2)(c) since the declaration was found false within the stipulated one-year period and the limitation for further proceedings is governed by the Finance Act, 1994. Treatment of Competing Arguments: The appellant contended the Show Cause Notice was barred by limitation. The Court rejected this, relying on the plain language of Section 129(2)(c) and the Supreme Court's directions extending limitation periods during the COVID-19 pandemic. Conclusions: The Show Cause Notice is not barred by limitation under Section 129(2)(c) of SVLDRS, 2019. Issue 2: Legality of Demand of Service Tax on Forfeited Advance under Section 66E(e) of Finance Act, 1994 Relevant Legal Framework and Precedents: Section 66E(e) of the Finance Act, 1994 covers taxable services including Real Estate Agent Services. Service tax is leviable on advances forfeited for such services. Court's Interpretation and Reasoning: The Court upheld the demand of Rs. 1,45,000/- service tax on forfeited advance amount for the financial year 2015-16, confirming the appellant's liability under the said section. Key Evidence and Findings: The appellant forfeited Rs. 10,00,000/- as advance for Real Estate Agent Service and did not pay service tax on this amount. Application of Law to Facts: The forfeited advance is taxable under Section 66E(e), and the appellant's failure to pay service tax on this amount was held liable for recovery with interest and penalty. Treatment of Competing Arguments: The appellant did not dispute the tax liability but challenged the demand on other grounds like limitation and credit adjustment, which were addressed separately. Conclusions: The demand of service tax on forfeited advance amount is legal and proper. Issue 3: Invocation of Extended Period of Limitation for Demand of Service Tax Relevant Legal Framework and Precedents: Section 73(1) of the Finance Act, 1994 allows extended period of limitation if the assessee has suppressed facts with intent to evade tax. Supreme Court orders dated 27.04.2021 extended limitation periods due to COVID-19 pandemic. Circular No. 157/13/2021-GST dated 20.07.2021 clarifies extension applies to GST appeals and related proceedings. Court's Interpretation and Reasoning: The Court found that the appellant suppressed facts by not filing ST-3 returns and not disclosing CENVAT Credit utilization, thereby evading payment of service tax. This suppression justifies invoking the extended limitation period. Key Evidence and Findings: Non-filing of ST-3 returns for FY 2015-16 to 2017-18 (up to June 2017), non-disclosure of CENVAT Credit utilization to the designated committee, and failure to pay full tax amount. Application of Law to Facts: The extended period of limitation was rightly invoked as suppression of facts with intent to evade tax was established beyond doubt. Treatment of Competing Arguments: The appellant argued extended limitation could not be invoked due to absence of necessary ingredients and reliance on various judgments. The Court distinguished those cases on facts and upheld invocation of extended limitation. Conclusions: Extended period of limitation is invokable in this case for demand of service tax. Issue 4: Admissibility and Adjustment of CENVAT Credit against Service Tax Liability under SVLDRS, 2019 Relevant Legal Framework and Precedents: Rule 3, 4 and 9 of CENVAT Credit Rules, 2004 and Rule 4A of Service Tax Rules, 1994 govern admissibility and declaration of CENVAT Credit. Section 130(1)(a) of SVLDRS, 2019 prohibits payment of tax through CENVAT Credit under the scheme. Board Circular No. 1071/4/2019-CX dated 27.08.2019 clarifies adjustment of duty/tax paid through input credit at final determination stage. Court's Interpretation and Reasoning: The Court held that the appellant was not entitled to adjust CENVAT Credit against the tax payable under SVLDRS since the scheme mandates 100% payment in cash without utilizing CENVAT Credit. The appellant's claim of taking credit in their private CENVAT register without filing ST-3 returns was not acceptable. The non-filing of statutory returns rendered the credit inadmissible. Key Evidence and Findings: Appellant did not file ST-3 returns for relevant periods and did not disclose CENVAT Credit utilization in SVLDRS declaration. The designated committee issued discharge certificate based on incomplete declaration. Application of Law to Facts: Since the appellant did not comply with mandatory filing and disclosure requirements, their claim to CENVAT Credit was disallowed. The netting of credit against tax liability was held impermissible under the scheme and rules. Treatment of Competing Arguments: The appellant relied on Board Circulars and judicial decisions supporting credit adjustment. The Court distinguished those decisions on facts, noting that in those cases statutory returns were filed and credits declared. The Court also relied on a Division Bench judgment of a High Court which held that CENVAT Credit is a concession and must be claimed within prescribed time limits and conditions. Conclusions: The appellant was not entitled to adjust CENVAT Credit against service tax liability under SVLDRS; the credit claim was inadmissible due to non-filing of returns and non-disclosure. Issue 5: Imposition of Penalty and Interest under Sections 78 and 75 of Finance Act, 1994 Relevant Legal Framework and Precedents: Section 78 of the Finance Act, 1994 provides for penalty on service tax evasion. Section 75 provides for interest on delayed payment of service tax. Supreme Court decisions hold that penalty is imposable if extended period of limitation is invoked due to suppression of facts. Court's Interpretation and Reasoning: Given the appellant's suppression of facts and evasion of service tax payment, the Court upheld the imposition of penalty and interest. The invocation of extended limitation period justified the penalty. Key Evidence and Findings: Non-filing of returns, non-payment of full tax, non-disclosure of credit utilization, and false declaration under SVLDRS. Application of Law to Facts: Penalty and interest were imposed in accordance with statutory provisions and judicial precedents. Treatment of Competing Arguments: The appellant argued against penalty and interest citing procedural lapses and reliance on judgments favoring credit claims. The Court rejected these, emphasizing the mandatory nature of compliance and the established suppression. Conclusions: Penalty and interest are rightly imposed on the appellant. Issue 6: Effect of Non-Filing of ST-3 Returns and Non-Declaration of CENVAT Credit in Statutory Returns Relevant Legal Framework and Precedents: Rule 7 of Service Tax Rules, 1994 mandates filing of half-yearly ST-3 returns declaring service tax and CENVAT Credit. Rule 9(9) of CENVAT Credit Rules, 2004 requires submission of half-yearly returns specifying credit taken. Supreme Court and High Courts have held that filing of returns and declaration of credit are mandatory conditions for admissibility of credit. Court's Interpretation and Reasoning: The Court held that non-filing of ST-3 returns is not a mere procedural lapse but a substantive failure depriving the revenue of opportunity to verify credit claims. Private records or registers maintained by the appellant without statutory filing are not acceptable. Therefore, the appellant's claim to CENVAT Credit is not sustainable. Key Evidence and Findings: Appellant did not file any ST-3 returns for the relevant period, failed to declare credit in statutory returns, and did not produce any statutory CENVAT register or declarations. Application of Law to Facts: The appellant's failure to comply with mandatory return filing and declaration requirements led to denial of credit and justified the demand and penalty. Treatment of Competing Arguments: The appellant cited decisions where non-mention of credit in returns was held procedural and curable. The Court distinguished those cases where credit was declared in subsequent returns or applications, unlike the present case of complete non-filing. Conclusions: Non-filing of ST-3 returns and non-declaration of CENVAT Credit in statutory returns results in inadmissibility of credit and supports the demand and penalty imposed.
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