Regarding collection of service tax by department

This query is : Resolved

vicky (Querist)
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07 February 2013 Can the superintendent has the power to collect the service tax for FY 2002-03 & 2003-04 during 2013? Actually the registration was granted in 2004 but was of no use because from 2004 onwards gross amount collected is below tax limit. What is the maximum period that can be for service tax demand?

Kaushik Vinod

Kaushik Vinod (Expert)
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08 February 2013 Dear Vicky,

Before recovering the Service tax the Central Excise Officer has to issue the Show cause Notice under Section 73 of the Act.
73. (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the 23[Central Excise Officer] may, within 24[eighteen months] from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice :

Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of—
(a) fraud; or
(b) collusion; or
(c) wilful mis-statement; or
(d) suppression of facts; or

(e) contravention of any of the provisions of this Chapter or of the rules made there under with intent to evade payment of service tax,by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words 24"[eighteen months]", the words "five years" had been substituted.

The Notice under your case is bad in Law since both the time limits has expired.

Thanks

Arvind Tiwari

Arvind Tiwari (Expert)
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09 February 2013 First of all, superintendent does not have power to issue show cause notice. In can be issued by Assistant Commissioner /Deputy Commissioner.
Further the department can not go beyond 5 years to raise ST demand that too only if it is case of fraud/ suppression of facts.
If you have not filed your ST return from the date of registration then you have to file return & you have to pay penalty for late filing of return from 2004 onwards (If you have not collected any Tax or you have nil income, you can also apply to superintend for waiver of penalty

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