2025 (7) TMI 219 - AT - Service Tax

Short/excess paymentof service tax - appropriation of short paid from excess deposit - invocation of extended period of limitation - levy of penalty - principles of unjust enrichment - HELD THAT - It is seen that there were short payments of Rs.10, 53, 786/- for 2009-10 and Rs.2, 65, 285/- for 2012-13 which have been adjusted against the excess payment made by the appellant. However after adjusting the service tax liability of Rs.10, 53, 786/- for 2009-10 and Rs.2, 65, 285/- for 2012-13 there still remains an excess payment of Rs. Rs.22, 37, 334/- (Rs. 24, 45, 768/- Rs. 11, 10, 637/-) (Rs. 10, 53, 786/ Rs. 2, 65, 285/) at the end of 2012-13 as submitted by the assessee. Thus we are of the opinion that the ld. adjudicating authority was required to refund the excess amount paid by the assessee after adjustment of the tax liabilities after examining the issue of unjust enrichment. The Service Tax of Rs.13, 19, 071/- (Rs.10, 53, 786/- Rs.2, 65, 285/-) being the short payments made by the appellant/assessee for the periods 2009-10 and 2012- 13 is payable by the appellant along with applicable interest which is required to be adjusted against the excess payment made by them. However with regard to the assessee s claim for refund of the excess payment made by them we are of the opinion that the issue needs to be remanded back to the adjudicating authority to verify the unjust enrichment angle as well as the correctness of the claim made by the assessee regarding excess payment before refund of the excess amount after adjustments of their Service Tax liability. Penalties on assessee - HELD THAT - Tthere were short payments and excess payments but overall there was an excess payment by the assessee. Hence no penalty is imposable on them. Accordingly all the penalties imposed on the assessee in the impugned order set aside. From the categorical observations of the ld. adjudicating authority it is seen that the ld. adjudicating authority has verified all the work orders and other relevant documents filed by the assessee in entirety and being satisfied that the assessee has received the said amounts for providing Road Construction Services under the CSR Scheme extended the benefit of exclusion of the said amounts while arriving at the taxable value of the assessee for the respective periods. Therefore there are no reason to disagree with the same. Accordingly there is no infirmity in the findings of the adjudicating authority while dropping part of the demands in the impugned order. Consequently there is no merit in the appeal filed by the Revenue and hence the same is rejected. The Service Tax liability of the assessee confirmed in the impugned order for the periods 2009-10 and 2012-13 along with interest are required to be adjusted from the excess payment made by the assessee - After adjustment of Service Tax and interest the excess payment remaining if any shall be liable to be refunded to the assessee subject to verification of the issue of unjust enrichment. For this purpose the matter is remanded back to the adjudicating authority to verify the unjust enrichment angle as well as the correctness of the claim made by the assessee regarding excess payment before sanctioning refund of the excess amount paid by the assessee in this regard - No penalty is imposable on the assessee. Accordingly all the penalties imposed are set aside. Appeal disposed off.

The core legal questions considered by the Tribunal in this matter include:

1. Whether the short payment of Service Tax by the assessee for the periods 2009-10 and 2012-13, as determined by the adjudicating authority, is sustainable, including the invocation of extended limitation under Section 73(1) of the Finance Act, 1994.

2. Whether the excess payment of Service Tax made by the assessee in the years 2010-11 and 2011-12 can be adjusted against the short payments or refunded to the assessee.

3. Whether the exclusion of certain bill amounts related to 'Road Construction Services' under the CSR Scheme from the taxable value is justified.

4. Whether penalties imposed under Sections 77(1)(b) and 78 of the Finance Act, 1994, are sustainable, particularly in light of excess payments and the applicability of Section 80 for waiver of penalties.

5. Whether the adjudicating authority correctly applied the methodology for determining taxable value, especially concerning the separation of accounts of two enterprises under common ownership.

Issue 1: Validity of Short Payment Demands and Invocation of Extended Limitation

The legal framework involves Section 73(1) and (2) of the Finance Act, 1994, which govern the recovery of Service Tax short paid and the conditions for invoking extended limitation periods where suppression of facts with intent to evade tax is established.

The Tribunal analyzed the adjudicating authority's detailed review of the assessee's balance sheets, profit & loss accounts, and ST-3 returns. The authority found that the assessee had not disclosed actual taxable service values in statutory returns despite availability in accounting records. This was held to constitute suppression of facts, justifying invocation of extended limitation under Section 73(1).

The Tribunal noted that the short payments for 2009-10 and 2012-13 were admitted by the assessee and confirmed by the adjudicating authority, with service tax demands quantified as Rs. 10,53,786 and Rs. 2,65,285 respectively. The Tribunal upheld the invocation of extended limitation based on the finding of suppression and intent to evade tax, thus sustaining the short payment demands.

Competing arguments by the assessee that demands for 2009-10 should be barred by normal limitation were rejected, as the Tribunal found that the facts and figures were not honestly disclosed, warranting extended limitation.

Issue 2: Adjustment and Refund of Excess Service Tax Payments

The assessee made excess payments in 2010-11 and 2011-12 totaling Rs. 35,56,405. The adjudicating authority adjusted short payments against this excess but held the residual excess amount without refund, citing absence of refund claims by the assessee.

The assessee contended that the remaining excess amount of Rs. 22,37,334 [(24,45,768 + 11,10,637) - (10,53,786 + 2,65,285)] should be adjusted against future liabilities or refunded.

Relevant precedents cited by the assessee supported the principle that excess tax paid can be adjusted against future liabilities or refunded, subject to verification of unjust enrichment.

The Tribunal agreed that after adjustment of short payments and interest, the excess payment should be refunded or adjusted. However, it remanded the matter to the adjudicating authority to verify the issue of unjust enrichment and correctness of the excess payment claim before sanctioning refund.

The Tribunal emphasized that the adjudicating authority must examine whether refund or adjustment would result in unjust enrichment to the assessee, thus ensuring compliance with principles of equity and tax law.

Issue 3: Exclusion of Road Construction Services under CSR Scheme from Taxable Value

The Revenue challenged the exclusion of certain bill amounts related to road construction services under the CSR Scheme from the taxable value, contending that the adjudicating authority did not properly examine work orders or agreements to justify exclusion.

The adjudicating authority had accepted the assessee's submissions and examined relevant documents, including work orders and Chartered Accountant certificates, concluding that road construction under CSR is excluded from taxable service under Section 65(105)(zzzza) of the Finance Act, 1994, which excludes works contracts relating to roads, airports, railways, transport terminals, bridges, tunnels, and dams.

The Tribunal found no infirmity in the adjudicating authority's findings, noting the detailed verification of documents and the consistent application of statutory definitions. It rejected the Revenue's appeal on this ground, affirming the exclusion of these amounts from the taxable value.

Issue 4: Penalties Imposed under Sections 77(1)(b) and 78 and Applicability of Section 80

The adjudicating authority imposed equal penalties under Section 78 for short payment and a penalty under Section 77(1)(b) for non-maintenance of statutory records.

The assessee argued that penalties should be waived under Section 80, which allowed waiver of penalties if tax was paid before issuance of show cause notice, and that the penalty under Section 77(1)(b) was unjustified since books of accounts were maintained as evidenced by audit scrutiny.

The Tribunal observed that overall, the assessee had made excess payment of service tax during the relevant period, and that penalty imposition was not justified in such circumstances. It set aside all penalties imposed, invoking the principle that penalty is not imposable where there is no deliberate evasion or where tax is paid before notice.

The Tribunal also noted the absence of any mandatory penalty under Section 78 during the relevant period and found the penalty under Section 77(1)(b) contrary to the facts established by the adjudicating authority's own findings.

Issue 5: Methodology for Determining Taxable Value and Treatment of Accounts of Two Enterprises

The Revenue contended that the adjudicating authority's exclusion of figures of a related enterprise (Bengal Enterprise) from the balance sheet was improper, as preparation of separate balance sheets for different departments is not permissible.

The adjudicating authority had relied on separate balance sheets and profit & loss accounts of Eastern India Enterprise and Bengal Enterprise, both under common ownership, to arrive at a lower tax liability for the assessee.

The Tribunal noted that the adjudicating authority carefully considered the balance sheets and certificates submitted, and that the assessee's submissions were accepted due to lack of corroborative evidence supporting the Revenue's higher taxable values.

Though the Revenue argued irregularity in methodology, the Tribunal found that the adjudicating authority's approach was reasonable and based on available evidence, and that the order was properly reasoned in this respect.

Significant Holdings:

"Section 73(1) of the Finance Act, 1994 has been rightly invoked where suppression of facts with intent to evade payment of service tax is established."

"Excess payment of service tax made by the assessee can be adjusted against short payment and future liabilities or refunded, subject to verification of unjust enrichment."

"Road construction services under the CSR Scheme fall outside the scope of taxable works contract services under Section 65(105)(zzzza) and amounts received for such services are excludible from taxable value."

"Penalties under Sections 77 and 78 are not imposable where there is overall excess payment of service tax and tax has been paid before issuance of show cause notice; Section 80 provides for waiver of penalties in such cases."

"The adjudicating authority's reliance on separate balance sheets of related enterprises for determining taxable value, in absence of corroborative evidence, is a reasonable exercise of discretion."

"The Service Tax liability for short payments confirmed for 2009-10 and 2012-13, along with interest, is payable but shall be adjusted against excess payments made by the assessee."

"The matter is remanded to the adjudicating authority to verify the issue of unjust enrichment and correctness of excess payment claims before sanctioning refund."

"All penalties imposed on the assessee are set aside."

"The Revenue's appeal challenging exclusion of CSR road construction amounts is rejected."p>

In conclusion, the Tribunal confirmed the short payment demands for 2009-10 and 2012-13, upheld the invocation of extended limitation, allowed adjustment and potential refund of excess payments subject to verification, upheld exclusion of CSR road construction amounts from taxable value, and set aside all penalties. The Revenue's appeal was dismissed, and the matter was remanded for further verification on refund claims.

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