Demand on basis of difference in turnover as per ST-3 return and Form 26AS Set Aside by CESTAT

Revenue issued notice on the basis of the difference in the turnover of the appellant as per Form 26AS which was higher than the turnover as per the ST returns and the financial records maintained by the appellant.

Service Tax appeared to be short-paid, and so duty of Rs. 12,58,560 was demanded with a proposal to impose a penalty under Section 78, 77, and Section 70 of the Act. The proposed demand was confirmed along with an equal amount of penalty under Section 78, the penalty was also imposed under Section 77(1)(c) and Section 70 read with Rule 7 of Service Tax Rules.

Being aggrieved, the appellant preferred to appeal before the Commissioner (Appeals) who recorded the finding that the actual excess turnover as per Form 26AS for the two financial years 2013-14 and 2014-15 is Rs.7,22,058 (Rs.1,28,56,614 – Rs.1,21,34,556). Thus, the short-paid tax amount is Rs. 89,246. Accordingly, this amount was confirmed with an equal penalty under Section 78 of the Act, and the penalty imposed under Section 70 for late filing of the return, was reduced to Rs.500 for the period October 2013 to March 2014. A Penalty amounting to Rs. 10,000 imposed on the appellant under Section 77(1)(c) was upheld. Being aggrieved, the appellant filed an appeal before this tribunal.

The tribunal held that there was no case of service tax as the appellant has paid the service tax in the next financial year. Therefore, the demand and penalty under Section 78 were set aside. In the facts and circumstances of the case, the penalty under Section 77(1)(c) as well as under Section 70 was also set aside by the Tribunal.

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