M/s Bispa India Vs. Commissioner of customs, central excise & service tax, siliguri

 

(IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL

EASTERN ZONAL BENCH : KOLKATA)

 

 

Facts of case:

 

The applicant/ appellant are registered with the central excise department with effect from 11/04/2005 for providing erection, commissioning and installation services. When the amount of Service Tax paid by them as declared in the ST-3 returns were compared with their audited balance sheet it was fount that during the financial years 2005 – 2006, 2006 – 2007 and 2007 – 2008 they have short paid Service Tax to the tune of Rs. 1.69 crores including Education Cess and Higher Education Cess. Proceedings were initiated against the applicant / appellant by issuing show cause notice dated 11.09.2009. The said show cause notice was confirmed and penalty was imposed by the Commissioner.

 

The consultant appearing for the appellant said that services provided by them were work contract services and the appellant was eligible for 67% abatement admissible to them under Notification NO. 19/03 – ST dated 21.08.2003 and 1/2006 dated 01.03.2006 which was not allowed by commissioner while determining service tax liability. The consultant submitted that the liability of service tax would be reduced to an amount of 46 lacks after considering above abatement. He has also submitted that figures shown in balance sheet were cum tax. He had pleaded financial hardship but was not able to submit documents related to it.

The revenue department submitted that at no point of time the appellant have claimed abatement as admissible under the Notification No. 19/2003 – ST and 1/2006 – ST in their ST – 3 returns. Hence the amount short paid based on the audited balance sheet were correctly calculated by the adjudicating authority.

Decision:

  1.  Service Tax on ‘works contract’ was levied w.e.f 01.06.2007 hence majority of the period was covered under the erection, commissioning and installation services for which the applicant / appellant was registered w.e.f April, 2005.
  2. The appeallant were never claimed abatement in return and so fulfillment of conditions for abatement could not be verified by department.
  3. The appellant could not show supporting documents for financial hardships.

 So The conditional stay was granted and the appellant was directed to pay 25% of service tax amount within a period of 8 weeks and report compliance on 12/9/2012. Failure of it would result of dismissal of appeal without any further notice.