TaxTMI 
TaxTMI 
2025 (12) TMI 1144
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 73(1) and Section 75 of the Act respectively. Penalty equal to the tax confirmed above In terms of Section 78 of the Act is hereby confirmed. I do not interfere with the penalty of Rs 40,000/- Imposed in the order-in-original under section 70(1) of the Act ibid as well as penalty of Rs 10,000/- Imposed under section 77(1)(c )()of the Act ibid, as imposed by the adjudicating authority as the party did not file, Service tax returns on time and did not submit the requisite information to the department when asked for. 2.1 Appellant is registered with the service tax department with registration No. BLOPS6705EST001, and are engaged in providing taxable services. 2.2 On the basis of information received from the income tax department it was observed that during the year 2016-17 appellant has received about Rs 1,61,00,138/- towards provision of services. However they had not paid any service tax during the corresponding period. They were asked by the jurisdictional officers vide letters dated 31.03.2021 & 07.06.2021 to provide proper reconciliation along with the following documents: a. Copy of 26AS for the financial years 2016-17 & 2017-18; b. Copies of Income T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot filing ST-: Returns for the Financial Year 2016-17 under Section 70(1) of the Finance Act. 1994 read with Rule 7C of Service Tax Rules 1994 and Section 174 of the CGST Act, 2017. 2.6 The show cause notice was adjudicated as per the order in original No 56/ST/AC/Bijnor/ 2022-23 dated 31.01.2023 holding as follows: "ORDER (i) I confirm the demand of Rs, 25,15,021/- [inclusive of Cess] (Twenty Five Lacs Fifteen Thousand Twenty One only) under section 73(1) of the Act read with Section 174 of the Central GST Act, 2017 as discussed in above paras and order to recover from the Noticee. (ii) I also confirm interest at appropriate rate on demand at (i) above under Section 75 of the Finance Act, 1994 read with Section 174 of the Central GST Act, 2017and order to recover from the Noticee. (iii) I impose a penalty of Rs. 25,15,021 /-on the Noticee, under Section 78 of the Finance Act, 1994 read with Section 174 of the Central GST Act, 2017. (iv) I order the Noticee to pay late fee of Rs.40,000/- under Section 70(1) of the Finance Act, 1994 read with Rule 7C of the Service Tax Rules, 1994 and also read with Section 174 of the Central GST Act, 2017an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....UPPCL, Electricity Distribution in the cities of Amroha, Bijnor and Chandaushi. Perusal of these reveals that they have supplied skilled/un-skilled manpower in connection with maintenance of 33 KE feeders and transformers. In their submission dated 06.02.2024, they have supplied 26 measurement books/bills primarily In respect of M/s UPPCL formations located in the cities of Gajroula, Dhampur, Pakshimanchal, Chandaushi. These are at pages number 12 to 66 of the submission dated 06.02.2024. Perusal of these reveals that they have supplied manpower, both skilled and un-skilled for the purposes of maintenance of electrical transformers/feeders. 4.5 Therefore, I find that in respect of the services rendered to different formations of M/s UPPCL, the party has, indeed done manpower supply on which service tax is payable on reverse charge basis by the client to full extent, as this pertains to financial year 2016-17. This is in accordance with notification number 30/2012-ST dated 20.06.2012, as amended from time to time. 4.6 I now come to second client M/s IL&FS in respect of which the party has produced the contracts. It has been placed on page 2 to 4 of submissions date....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rding nonpayment of service tax, applicability or exemption of service tax if any. Further, neither they nor their representative had appeared for personal hearing. Since, the Noticee did not provide the copies of work orders, bills issued by them and any other information in respect of their payment, and details of Service Tax for service provided, therefore any abatement and exemption on value of Rs. 1,61,00,138/- service provided cannot be provided to the Noticee. 4.5 In view of the above, I find that the Noticee had rendered taxable service provided under Section 65B (44) of the Finance Act, 1994 during the impugned period. Since, the Noticee have not submitted any documents/records or evidence to prove that they have not provided such taxable services or they were eligible for abatement if any thereof, and also not attended the personal hearing provided to them. Therefore, I hold that the Noticee have nothing to say in their defence. Thus, I find that tax demanded in the notice is correct and sustainable and according]y the Noticee is liable to pay the Service Tax amounting to Rs. 25,15,021/- (including cess) for providing of services during the period 2016- 17 under ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s from the date prescribed for submission of such return, an amount of five hundred rupees; (ii) beyond fifteen days but not later than thirty days from the date prescribed for submission of such return, an amount of one thousand rupees; and (iii) beyond thirty days from the date prescribed for submission of such return an amount of one thousand rupees plus one hundred rupees for every day from the thirty first day till the date of furnishing the said return. I find that that the Noticee have failed to file statutory ST-3 return within stipulated time for the period April 2016 to September 2016 & Octcber2016 to March 2017. Accordingly, I hold that the Noticee is liable to pay late fee of Rs. 40,000/- under Section 70 of the Finance Act, 1994 read with Rule 7C of the Service Tax Rules. 1994 4.9. In the said Notice, a penalty is also proposed under Section 77 of the Act for contravention of Section 70 of Chapter V of the act. Therefore, I find that the penalty of Rs. 10,000/- is imposable upon the Noticee in terms of Section 77(1)(c)(i) of finance act 1994. 4.4 From the facts as recorded above and which are not in dispute it is evident ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...... (3)Every assessee shall submit the half-yearly return electronically. (3A)...... (3B)....... (4)........ 4.5 From the provisions as above it is evident that above provisions mandated mandatory filing of the return by the person who was providing the taxable services and was registered with the department. Admittedly and undisputedly appellant did not file any return as required under the statute. It is also evident when the department made enquiries from the appellant in respect of the receipts towards provision of services appellant again chose not to respond and provide the requisite information so that proper view could have been taken in respect of the receipts towards the provision of services which came to the knowledge of department only thorough the information provided by the income tax department. It is not the case that no effort were made by the department to investigate the differences noticed in the figures of receipts towards provision of services, as provided by the income tax department and the figures available with the service tax department. As appellant did not respond to the repeated correspondences, the department was....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... taking a particular stand which rules out application of Section 11A of the Act. 12. As far as fraud and collusion are concerned, it is evident that the intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word 'wilful', preceding the words "mis-statement or suppression of facts" which means with intent to evade duty. The next set of words 'contravention of any of the provisions of this Act or Rules' are again qualified by the immediately following words 'with intent to evade payment of duty.' Therefore, there cannot be suppression or mis-statement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11A. Misstatement of fact must be wilful." 4.6 From the facts as brought out in this case it is evident that appellant by not filing the returns and not providing the information called for have willfully suppressed the relevant facts from the department to evade the payment of due service tax. Intention to evade payment of service tax is to be determined from the conduct of the appellant and the facts of case. This bein....
X X X X Extracts X X X X
X X X X Extracts X X X X
....this case, the Tribunal, inter alia, examined the facts of the case and various case laws and held that material and relevant facts forming the basis of demand were already within the knowledge of the Revenue and in such event, the extended period cannot be invoked. Therefore, the issue is whether material facts were within the knowledge of Revenue or otherwise in the present case. Perusal of the SCN would indicate that the Department noticed certain discrepancies when they compared the P&L account as against turnover shown in the periodical returns and only when inquired further about the said discrepancy, the Appellant, vide their reply dt.27.05.2020, submitted certain documents and informed the reasons for difference in the turnover on account of certain facts. Therefore, based on the documents submitted by the Appellant on 27.05.2020, the discrepancies were noticed and were examined in the light of the legal provisions and thereafter, SCN dt.15.09.2020 was issued. Therefore, it is obvious that during the material time for which the demand has been made, no such documents or information were either available to Department or made available by Appellant and merely because ST3 ret....
X X X X Extracts X X X X
X X X X Extracts X X X X
....st the respondent assessee under the CEA. The justification of extending the period of limitation depends upon whether the respondent assessee has suppressed facts and failed to provide accurate information regarding its sales to the Revenue. To this extent, there is a finding of fact against the assessee. 4.8 In the case of L R Brothers Indo Flora Ltd. [2020 (373) E.L.T. 721 (S.C)] Hon'ble Supreme Court observed as follows: 33. The next contention of the appellant is that Section 28 of the 1962 Act cannot be invoked to extend the limitation as there was no wilful mis-statement or suppression of facts on behalf of the appellant. The decision of this Court in Uniworth Textiles (supra), has been relied upon by the appellant. The same explains the situations in which Section 28 of the 1962 Act can be invoked. It had been held in the said decision that the extension of limitation for a period of five years can be done only in cases of deliberate default and not inadvertent non-payment. It was further held that the burden for proving mala fide conduct is on the revenue : and specific averments in that regard must find place in the show cause notice. 34. In the fact ....