Other provisions in service tax

September 6th, 2012

1 Audit by department and CERA

¨     No audit if turnover less than 60 lakhs (but visit of preventive officers allowed).

¨     Be polite but firm. Be calm and patient

¨     Do not pay tax on ad hoc basis.

¨     If you are not sure about legal position, Correct answer is ‘We will do as required by law’, without making any commitment.

2 Refund

¨     Application within one year in form R

¨     No refund if unjust enrichment

¨     Amount should be shown as ‘receivable’ in financial accounts and not to be taken in P&L account to prove that you have not passed on the burden of tax to customer i.e. there is no unjust enrichment.

3 Demands

¨     Duty payable by self assessment.

¨     Demand within 18 months from date of return. Demand upto 5 years in case of suppression of facts, fraud, wilful misstatement

¨     Adjudication by CE officer. (In 99% cases, demand is confirmed)

¨     Powers of Adjudication, based on demand of duty – (a) Superintendent – ` one lakh (b) Deputy/Assistant Commissioner – ` five lakhs (c) Joint Commissioner and Additional Commissioner – ` fifty lakhs (d) Commissioner – without any upper limit.

¨     Full disclosure is the key to safety, to avoid charge of suppression of facts. Hence, wherever in doubt, all material facts should be disclosed to department.

4 No demand after payment of taxes with interest

¨     SCN cannot be issued after service tax with 18%/15% interest is paid

¨     This would be so even if service tax and interest is paid after audit by department or even raid by preventive people

¨     Section 73(3) prohibits issue of  such notice

¨     Ignorance of law is an excuse. Mere non-payment of tax does not automatically lead to conclusion that there was suppression of facts.

5 Penalties

¨     Heavy penalties for even procedural lapses

¨     Penalty can be reduced under section 80, except in case of fraud, suppression of facts, wilful misstatement etc.

¨     Penalty not payable if service tax and interest paid before show cause notice, except in case of fraud, misstatement etc.

6 Appeals

¨     First appeal before Commissioner (Appeals) if adjudication order by Superintendent or Assistant or Deputy or Additional Commissioner

¨     Appeal to be filed within 2 months

¨     Appeal against order of Commissioner or Commissioner (Appeals) before Tribunal within three months.

¨     Appeal subject to condition of pre-deposit of service tax, interest, penalty etc. However, it can be waived for sufficient reasons.

7 Further Appeals

¨     Appeal to High Court on question of law (except in case of valuation and classification)

¨     Appeal to Supreme Court if issue of valuation and classification

¨     Writ remedy is available if other remedy is not sufficient

8 Prosecution

¨     Fine and imprisonment imposable for offences.

¨     No provision for arrest in service tax.

¨     Provision for arrest in customs and excise but offences are bailable.



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