How to interact with departmental officers & Reply to SCN and adjudication- Service Tax
The service tax payer at times fears the interaction with the revenue officers whether in writing or otherwise.
Here are few suggestive approaches which could be used while interacting with the departmental officials, the said approaches are not new to the assessee, but using of the said techniques appropriately at the right time in a proper way, would certainly bring in confidence in the assessee while interacting with the department.
Few Modes Of Communication
This mode of communication though of common use in corporate sector in most of the metros and other major cities has not yet reached the comfort zone of the officers. This is one of the easiest way of communicating with the department, however department lacks computer savvy officers, therefore practically this method of communication most of the time would only lead to one way communication, however once the level of computer awareness among the officers develops, this option would be very effective, efficient and faster. In fact the present e-filing option has been simplified as compared to cumbersome method which was not found in favor of the assessees. In time to come E-mail communication would certainly avoid personal interaction with the department. With e registration, efiling the way forward is clear.
With the large expansion of the telecommunication user with both cell phone and fixed line phone has become common source used by the department for the interaction with the assessee. The assessee is advised to request for written communication for providing any information. This is to avoid unnecessary information from being provided to unauthorized persons.
Wherever information is provided to the department it is always preferable to record the date, time, person and the details of the information by way of a letter to the department. An acknowledgement for the same should be obtained or it should be sent by Registered Post Acknowledgement Due. (RPAD)
Where the matter is with respect to possible Show Cause Notice then the information should invariably be in writing and preferably after consulting wherever required. (By RPAD)
Where queries are frequent, this mode maybe discourage to extent possible as it intrudes into the normal business transaction time. The requests for sending an email or written request could end up with no query being raised at all at times.
(c) Letters from department
All letters received are to be marked with date of receipt and especially for Show Cause Notice/Adjudication/Appeal Order, the envelope cover should be retained as evidence for date of receipt.
All letter from the department should invariably be replied within one month, and if not possible the assesee should seek extension of time in replying to the letter received from the department. All communications should be perused to see which are in the direction of the enquiry.
If the communication is with respect to possible Show Cause Notice, if required seeking legal advice wherever required and filing a comprehensive reply providing the facts clearly along with the reasonable justifications along with legal grounds. This could avoid the issue of the SCN, which consumed time, effort and money.
In the case irrelevant details of sensitive nature have been asked for, the query as to the purpose maybe addressed with a copy to Higher Officer.
Under no circumstances any communication received from department should back dated. No back dated acknowledgment should be given as the communication may be with respect to a demand. The communication could be through the post or by person at the option of the assessee.
(d) Letter to department
All correspondences to the departmental officers should be duly acknowledged and if not done a copy should be sent by RPAD. RPAD can be used as a better alternative to hand delivery.
All the information provided should be factually correct and therefore maybe re checked. In the case of reply to SCN – All evidences and grounds for justification of action indicated along with copies of documents relied on should be duly enclosed along with reply to Show Cause Notice. This could be vital in higher levels of litigation.
The time limits specified in departmental correspondences should generally be adhered to unless the same is impractical or unreasonable and extension maybe requested wherever there is a delay providing the reasons thereof. The normal period for reply could be between 15 days to 30 days.
Where the stakes involved are large even if competent persons are in charge, the services of a competent counsel is advisable.
(e) Visits by department
In normal course the officers are not supposed to visit the assessee at his premises even for verification of the address. Therefore in case of any visit, the identity of the officer maybe verified preferably by the security personnel who need not let them enter unless it is enquiry.
The visiting officers are required to record their visit in the Visit Register with the purpose. Insistence on recording will lead to purposeful visits or avoid future visits. This restriction is also applicable for vigilance and internal audit party. The officers sometimes take offence and refuse to do so. The same information maybe recorded with the remark that the same was refused. In case of repetitive visits a note to higher officer of the facts of visit maybe advisable.
Any document provided should be on a written request and duly acknowledged. The type of document provided may also be considered prior to handing over. A report to higher officer/for record wherever there is any doubt as to the straight forwardness of the inquiry is also advisable.
(f) Visit to department
The assessee may ask for Register to record your visit mentioning the date time and purpose in detail. If register is not available keep a private record of the visit with details of information provided, person met and the fact that there was no register available for making an entry. It is advisable to report to Higher Officer or for record when the behavior is not normal or improper.
If repetitive information asked for or undue delay encountered a polite letter to higher officer with a copy to concerned officer highlighting that the time of everyone is precious, which may solve the future problems.
Use Indian Postal Service to extent possible as a better alternative to visits. This would save the valuable time of the officer as well as the assessee.
The authorization from the Commissioner of Central Excise(now these powers are given to Joint Commissioner of Central Excise by Finance Act, 2011) to the Assistant/Deputy Commissioner(this is substituted by Superintendent of Central Excise by Finance Act, 2011) can be asked to be produced in case of search. It is not merely something the officer is required to flash. It maybe examined in details and the portion, which are typed and portions, which are filled up in pen maybe observed. The same should have recorded the reason why such an inquiry is felt necessary and the documents sought. The Visit Register maybe entered.
Under no circumstances should the search be obstructed. All assistance asked for maybe provided. It is important that the power of arrest as contained in Section 13 of the Central Excise Act, 1994 has not been made applicable to service tax.
Factually correct information to be provided and when in doubt the same can be stated. The promise to provide the information later is also permissible.
Oral instruction to come to the department can be replied with a letter asking for specific reason for the same. The assessee may also ask for summons to be issued.
In the event a statement is to be recorded it has to be ensured that all questions asked and answers provided are recorded. The practice of noting down only a part of the answer and avoiding recording some questions and answers is incorrect as the same maybe relevant to the inquiry. It maybe confirmed that a copy of the statement would be provided at the end of the recording. In case of any difficulty in this regard a copy of the same maybe made prior to signing off. At end of summons and statement recorded the time should be noted.
In case the copy of the statement is not provided a written statement providing all the details provided along with the fact that written statement was not provided in spite of request maybe communicated within 24-48 hours.
In case of use of coercion/high handed tactics, the retraction statement should be made immediately and the higher Officer informed as to the same with a copy of the retraction. Provide all information to the best of your knowledge.
The one year limit would apply in most points as no malafide can generally be established for honest assessees. The disclosure requirements should be in place.
The reply to unresolved audit point if the involved stakes are high should be done with care and advice or assistance of the legal counsel maybe taken.
What is set out is merely an effort to arm the honest assessee and his advisors to be confident against the departmental officers. This should ensure that there would be a reduction of corruption, increase in transparency and increased compliance by the service providers.
Provisions as to penalty
The provisions as to penalty under service tax are as follows –
n Section 76 – Deals with penalty to pay service tax at Rs. 200 per day of failure or at 2% of such tax per month whichever is higher, from the first day after due date up to the date of actual payment. Penalty however cannot exceed service tax payable. It is proposed to reduce the penalty by half of what is presently being levied.
n Section 78 – Deals with penalty for suppression of value of taxable service and the penalty shall not be less than the service tax and shall not exceed twice the amount of service tax payable. This can be reduced on payment of tax and interest within the stated period of 30 days as explained earlier, along with the penalty determined. (Where penalty is levied u/s 78, no penalty shall apply u/s 76)
However the revised penal provisions which is effective from Finance Act 2011 as provided below:
Position in records
Penalty and provision
No fraud, suppression etc
1% of tax or Rs.100 per day upto 50% of tax amount (Sec 76)
Totally mitigated if tax and interest is paid before issue of notice
On showing reasonable cause under section 80
Cases of fraud, suppression etc
Captured true and complete position in records
50% of the tax amount (proviso to section 78)
(a) 1% P.M: max of 25% if all dues paid before issue of notice
(b) 25% of tax if all dues paid within 30 days (90 days for small assessee)
On showing reasonable cause under section 80
Not so captured
Equal amount section 78
n Section 77 – Deals with penalty for a contravention where no penalty is prescribed under law -
Amount of penalty in Rs.
On account of failure to make payment and take registration under service tax
Rs. 200 per day of default or a sum of Rs. 5000 whichever is higher
On account of failure to make electronic payment of tax
Failure to maintain proper records or books
Failure to furnish information called for under this chapter or Failure to furnish documents required under this chapter or Failure to appear before CEO when issued summons to appear or produce documents in an inquiry
Rs. 200 per day of default or a sum of Rs. 5000 which ever is higher
Failure to issue proper invoice or issuing invoice with incorrect or incomplete details or failure to account invoice in books
(It is know proposed to enhance the penalty from Rs. 5000/- to Rs. 10,000/-)
As per section 73 of Chapter V of Finance Act 1994 as amended, where the service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the Central Excise Officer handling service tax can serve a Show Cause Notice on the person chargeable with service tax as to why he should not pay the amount specified in the notice. The notice shall state the amount involved.
This can be done within one year from the relevant date unless such short payment/ non-levy/refund was by reason of fraud or collusion or willful mis-statement or suppression of facts or contravention of the provisions of Chapter V or rules made there under with the intent to evade payment of service tax. In such cases, the time limit would be five years.
There is an option of completing the proceedings by payment of the tax amount along with interest u/s 75 before issue of notice in cases pertaining to fraud, collusion etc., by paying the said tax and interest along with penalty of 25% of the service tax specified in the notice within i days from the date of communication of notice.
(However Finance Act 2011, has omitted the said benefit with respect to closure of proceedings after payment of penalty under section 73(1A))
Demands under section 73 of Finance Act 1994, arise as a result of the desk review information of the assessee or on the basis of vigilance report, or Internal Audit Party audit, review of returns filed by the appellant or on the basis of the information seeked by the assessee from the department. In order to materialize any demand a Show Cause Notice is a must. Without a Show Cause Notice no demand can sustain. The department needs to be very careful while drafting the Show Cause Notice, because when the legal proceedings began the department needs to be within the ambit of Show Cause notice and the department cannot go beyond the scope of Show Cause Notice. In case the department goes beyond the scope of Show Cause Notice, the assessee should rebut back stating that the proceedings was going beyond the scope of Show Cause Notice.
Whenever a SCN is issued to an assesee, it is advisable to seek an opinion from a legal expert like CA or an Advocate, and it is always advisable that the assesee himself does not reply to the SCN. Because the assesee can marshall the facts but fall apart on legal grounds, therefore experts like CA / Advocates opnion should be seeked wherein they would examine and suggest whether or not the issue is worth litigating.
The demand proceeding will start only on issue of show cause notice
A birds eye view of demand process in the following table:
Initiation of proceedings under Section 73
Whenever there is a short levy/short payment or non-levy or non-payment, proceedings can be undertaken.
Show cause Notice
It is mandatory for the Department to issue a show cause notice.
What is time limit for communication of show cause notice
(a) Involving fraud, collusion, willful misstate-ment or suppression of facts or contravention of any provisions with intent to evade payment of duty – notice should be served within 5 years from relevant date.
(b) In other cases – notice should be serviced within 1 year from relevant date.
(c) Where the service of notice is stayed by court order, the period of such stay would be excluded in computing this time limit.
From which date the time limit will be computed
The date from which the time limit will be computed is defined as ‘Relevant date’. It means -
(a) In case of short levy/non-levy or short payment/non-payment the date on which the six monthly return is filed. If it is not filed, the date on which it was required to be filed;
(b) If there is no such time limit, date of payment of duty.
(c) In cases of provisional assessment, the date of adjustment of duty after final assessment.
(d) In case of erroneous refund, the date of such refund
Payment to drop proceedings
In case the service tax amount, interest as applicable under Section 75 and penalty of 25% of the service tax within 30 days of receipt of the notice then the entire proceedings shall be concluded. This provision has been done away with effect from 08.04.2011.Now in the course of audit, investigation or verification of the records some short payment is found then in such cases the assessee has the option to pay 1% penalty subject to maximum of 25%. Once an intimation is given, the notice need not be issued.
In case the service provider pays the service tax along with the interest and informs the department about such payment in writing, no notice will be served under this provision. In Finance Act 2010 explanation is added to clarify that no penalties are also imposable. Notice for penalty also cannot be served.
Recording of assessee’s representation
Sub-section 2 to 73 makes it mandatory for the officer to consider the representation of the assessee. The officer has to comply with the principles of natural justice.
Form of order
It is mandatory for the officer to pass a speaking order. Speaking order is one, which gives the reasons for the decision. A simple letter asking for payment of duty is not an order.
Payment on passing of the order
The service provider can either pay the tax determined or on the other hand has right to challenge the order by going further appeal, which grants him rights of obtaining stay of demanded amounts in appeal.
Who can represent the Service Provider?
A counsel being a person who is knowledgeable in the law of Central Excise as the requirement of specialized knowledge is of importance under this law. If representation services are envisaged, the counsel should in addition be a Chartered Accountant, a Cost Accountant, a Company Secretary, a post graduate or honors degree holder in Commerce, an advocate, or post graduate degree or diploma holder in Business administration or a retired employee of the Department of Central Excise or Customs after rendering not less than 10 years service.
What is a Show Cause Notice?
The show-cause notice (SCN) is needed for initiating any proceeding for raising demand of tax or interest and imposing penalties.
According to section 73(1), Central Excise Officer may within a period of one year from the relevant date, serve SCN on a person chargeable with the service tax which has not been paid or which has been short levied or short paid or the person to whom service tax refund has been erroneously made requiring him to show cause why he should not pay the amount specified in the notice.
Such SCN can be served within a period of five years (instead of one year) in cases of fraud, collusion, willful misstatement or suppression of facts. However, the fraud, collusion or wilful mis-statement must be "with the intention to evade duty".
1. The relevant date could be date of actual filing of the ST-3 return or
2. Date on which the return should have been filed or
3. Where no return required to be field date of payment of tax would be relevant date or
4. Date of adjustment after provisional assessment is finalised or
5. Date of erroneous refund.
Extended time limit for issuing the show cause notice in terms of proviso to section 73
Proviso to Section 73 provides that if there is fraud, collusion, willful misstatement, and suppression of fact and with intent to evading the payment of duty then the extended period of limitation will be applicable.
Once the Show Cause Notice is issued, subsequently a personal hearing is called for, on the basis of the reply to Show Cause Notice and submissions made during the personal hearing adjudicating authorities passes an order. In case the assessee is aggrieved by such order, such assessee prefers an appeal against such order to Commissioner (Appeals) in case the order of the adjudicating authorities is that of Commissioner of Service tax, then the assesses directly files an appeal to CESTAT. .
Appeal to Commissioner (Appeals)
As per section 85, the appeals shall be with CCE (Appeals). The Appeal shall be within three months from the date of receipt of the decision or order of such authority. Where the assessee has reasonable cause for delay in filing the appeal, the time limit can be extended by CCE (Appeals) for further period of 3 months. Beyond the said 3 months there is no provision for condonation of delay. Supreme court has ruled that beyond that period no condonation is possible. Orders would be passed in writing after a proper hearing.
Further, there is a requirement of making pre-deposit of service tax demanded in the order before making an appeal. However an application may be made before the same authority seeking waiver of the said pre-deposit. The Authority concerned may waive the said pre-deposit either in part or full.
Appeal to Tribunal
The appeal shall be against the order passed by the Commissioner of Central Excise/ Service Tax or the CCE (Appeals). The appeal shall be within three months from the date of the order sought to be appealed against. The respondent shall then be required to file a memorandum of cross objections within 45 days of the receipt of notice as to appeal by the appellant. The prescribed fee would have to be paid at the time of Appeal. The scale would be as follows -
n Where the amount of tax + interest + penalty is Rs. 5 lakhs or less – Rs. 1000/-
n Where the amount of tax+ interest + penalty is more than Rs. 5 lakhs but less than Rs. 50 lakhs – Rs. 5000/-
n Where the amount of tax + interest + penalty is more than Rs. 50 lakhs – Rs. 10000/-
The application for grant of stay, rectification of mistakes, restoration of appeal or an application or any other purpose would have a fee of Rs. 500/-
The Board is also empowered to constitute a Committee of Commissioners/Chief Commissioners to refer matters to Board or to jurisdictional Chief Commissioner where it differs with the order passed by CCE or CCE (Appeals)
Where appeals are filed, the amount of tax in dispute would have to be deposited by the assessee unless it can cause undue hardship in which case, an application would have to be filed with the CCE (Appeals) or the Appellate Tribunal as the case may be for dispensing with the requirement by virtue of section 35F of CEA 1944 read with section 83.
It is a fact that as on date most of the cases which are litigated are judicially confirmed in favour of the assessee. This is resulting into a gross waste of national resource and increases the transaction costs.
This is due the fact that frivolous cases are foisted and audit objections are the basis of issue of notices. There is target based tax administration.
Now, we would look at each of the steps leading to issue of the SCN as well as answering thereto in detail
DEPARTMENTAL AUDIT/ SCRUTINY
Based on the desk review information of the assessee or on the basis of vigilance report, Service tax department would issue a notice asking for certain detailed information or may also issue notice asking the assessee to keep his books of ready for the specified period for departmental audit.
Assessee on receipt such notice is required to reply back to the said notice, wherein he may either confirm the dates of audit as stated in the notice issued by the department or in case otherwise, the assessee may seek extension of time from such audit, he shall also specify the reasons for which he is not ready for the departmental audit on the said dates.
During the department audit, the assessee is accepted to keep all the records ready for the audit, and provide all information as desired by the audit team. On completion of audit, the audit queries would be put forth for decision between the auditor and auditee.
Once the audit points are discussed, the assessee may either accept the liability and pay the demanded amount along with applicable interest, in case the assessee disagrees with the demand made by the audit team, the department would then proceed to issue a show cause notice, wherein the department would specify the reasons why said Show Cause Notice should not be issued on the assessee demanding tax along with applicable interest and penalties.
SHOW CAUSE NOTICE
A show cause notice may be issued demanding taxes along with applicable interest and penalties, also the show cause notice would specify the time limit generally of 30 days time from the date of communication of notice to reply to the said notice.
While drafting the reply to show cause notice, the assessee should ensure following points
i. Time limit with respect to show cause notice and period of demand: In case the period of demand exceeds one year from the relevant date, the show cause notice can be challenged on the basis of period of limitation U/s 73 of Finance provided there is no short levied or short payment or erroneous refund of service tax by reason of fraud, collusion, wilful misstatement, suppression of facts or contravention of any provisions of this Chapter or of the rules made there under with intent to evade payment of service by the person chargeable with the service tax or his agent.
ii. In case the extended period of limitation is evoked the period of demand cannot exceed the period of five years from the relevant date.
iii. While drafting the show cause notice, ensure the jurisdiction of the officer issuing the show cause notice is correct. In case the officer issuing the show cause notice does not have a valid jurisdiction, the said show cause notice shall be an invalid show cause notice.
iv. Ensure the show cause notice is signed by the officer issuing the show cause notice.
v. Ensure a valid reasoning is given in show cause notice, when a demand for tax is mentioned in the notice, without valid reasoning a show cause notice can be challenged to be an invalid show cause notice.
vi. Ensure a show cause notice is supported with proper workings or computation annexure, in case the demand made is not supported with any annexure the same can be challenged to be an invalid show cause notice.
vii. Show Cause Notice should be issued only after successful detailed investigation, in case a show cause notice is issued merely on the basis of audit report, said show cause notice shall not sustain this view was upheld in case of kirlosker Pneumatic and Co Ltd Vs CCE2010-TIOL-159-CESTAT-MUM
viii. A show cause notice should be drafted in the following manner
a. Heading of Show Cause Notice should contain the address of the Commissionerate issuing the show cause notice.
b. Show Cause Notice reference no should be provided along with the address of the assessee.
c. Brief facts of the case should be mentioned
d. Reasons as to why the subject show cause notice was issued should be mentioned.
e. The total amount of demand raised, interest and penalty demanded under the specified section should be mentioned in the show cause notice.
f. The show cause notice reply should have grounds of submissions made by the assessee.
g. Assessee should justify the reasons for which the show cause notice was wrongly issued. Assessee should refer to all the relied upon case laws along with citation while preparing submission.
h. In case the assessee wishes to substantiate his reasoning along with other documentation or annexure, the same should form part of the annexure to reply to show cause notice. The evidences could be the following:
n Dept correspondences/ replies
n Contracts/ orders tenders
n Mails/ sales correspondences
n Invoices- purchases / sales/ services
n Accounts- present and past
n Many others…..
i. A personal hearing should be asked for in the written submission made by the assessee.
j. The show cause notice reply should also accompany a authorisation letter duly signed by the assessee, who authorises the representative to appear before the Assistant Commissioner or Commissioner on behalf the Assessee.
ix. A personal hearing would be fixed before the Assistant Commissioner or Commissioner, wherein the authorised representative would reiterate his written submission and shall substantiate his submissions made. In case the authorised representative is willing to make additional submission, he shall do so.
What are the requirements of an order?
1. The order must specify the amount payable. The service tax payable would be quantified by the adjudicating authority. He cannot say that the amount would be calculated by his junior officer on basis of guidelines issued by him.
2. The order cannot go beyond the SCN. The order must be based on the points that are in SCN. An order which is not based on the points alleged is not sustainable.
3. The order must be with reasons. In keeping with principle of natural justice the order should mention reasons for the demand confirmed.
4. Addendum to order or change to order: Once the adjudicating authority issues the order, he can only make changes for clerical mistakes or error apparent on record. The supplementary demand or additional demand cannot be made. The order once it is sined is final, even where it is not communicated to the party.
ORDER IN ORIGINAL
x. The Assistant Commissioner or Commissioner of Service tax on the basis of written submissions made and on the basis of additional submissions made during personal hearing shall dispose of the case in Order –in – Original.
1. Appeal before Commissioner of Central Excise (Appeals)
Any of the aggrieved parties, by the order of the original adjudicating authority shall file an appeal before the Commissioner of Central Excise (Appeals) in Form ST-4 (ST-4 should give a detailed submissions which the Appellant wishes to rely upon) along with stay application, within three months from the date of the communication of order. In case the appellant fails to file the appeal in ST-4 within three months from the date of Communication of Order in original, shall be obliged to file a condonation of delay. Commissioner of Central Excise (Appeals) may at his disposal grant condonation of delay for further period of three month if the Commissioner(Appeals) is satisfied that the appellant had sufficient cause for not filing the appeals within the prescribed time limit.
ST-4 should be accompanied with the following documents:
i. Authorization letter
ii. Certified true copy of order in original
iii. Copy of reply to show cause notice along with annexures, if any
iv. Copy of Show cause notice
2. Personal hearing before Commissioner (Appeals) And Order -in -Appeal
On personal hearing the authorized representative shall appear before the Commissioner (Appeals) and he shall make submissions and /or additional submission if any. On the basis of hearing both sides Commissioner (Appeals) shall pass an Order in Appeals. Until the disposal of the case and until three months from the date of communication of the Order in Appeal the first stage adjudicating authority can’t demand taxes. However on expiry of the time limit to file an application before CESTAT, the first stage adjudicating authority can initiate recovery proceedings provided the assessee had not preferred an appeal before CESTAT.
Order In Appeal
3. Appeal to Tribunal
Any of the aggrieved parties, by the order of Commissioner (Appeals) shall file an appeal before CESTAT in Form ST-5 along with stay application, within three months from the date of the communication of order. In case the appellant fails to file the appeal in ST-5 within three months from the date of Communication of Order in Appeal, shall be obliged to file a condonation of delay stating the reasons for such delay, if the CESTAT is satisfied as to sufficiency of reason for delay shall allow the appeal.
ST-5 should be accompanied with the following documents
i. ST-5 application along with stay application and related annexures
ii. Authorization letter
iii. Demand draft on the basis of quantum of demand
iv. Certified true copy of Order in Appeal
v. Reply to Order in original
vi. Copy of Order in original
vii. Copy of reply to show cause notice
viii. Copy of Show cause notice
The respondent would have a time limit of 45 days from the date receipt of notice to file cross objection memorandum.
4. Personal Hearing
On submission of ST-5 application, a personal hearing would be called for, wherein, on the basis of the merits of the case, the matter would be decided whether the matter is to be stayed or not. In case the matter is stayed, then the appellant would not in liable to pay any demand until the disposal of the case. In the case the stay application is rejected the appellant would be required to pay an amount as directed by the tribunal as pre-deposit.
5. Final Hearing
On final hearing of the matter, the detailed analysis of the case would be studied, evidences would be verified and other relied upon documentations would be looked into and decide the matter considering relevant judgments made in this regard and also the relevant provisions of the Act would be looked into. On the basis of the said analysis the matter would be decided. CESTAT would be the final fact finding authority,
The order of the Tribunal would have to go to High Court generally however if the matter involves rate of tax or valuation the case can be taken directly to the Supreme Court.
Hope this article provides some insights and value to the practitioner.