G. Raghuram, J.
1. At the stage of considering the stay application since the issue falls within a narrow compass we dispose of this substantive appeal after hearing Shri Bipin Garg, ld. Advocate for the appellant and the ld. A.R. for the respondent-Revenue. We do so after waiving the pre-deposit requirement.
2. By the order dated 4.4.2011, the Assistant Commissioner of Central Excise, Jaipur II confirmed service tax demand of Rs.2,59,116/- apart from directing recovery of the said amount along with interest under Section 75 of the Finance Act , 1994 (the Act) and penalties under Sections 75A, 76, 77, 78 of the Act.
3. The petitioner preferred an appeal against the order which was rejected in toto by he Commissioner (Appeals), Central Excise, Jaipur I, dated 10.1.2013.
4. Security Agency was legislated to be a taxable service with effect from 16.10.98.The appellant obtained registration for providing the taxable security agency service with effect from 24.4.2002. On information received, a search was conducted in the office premises of the appellant on 20.12.2003. The search and analyses of the records retrieved during the search revealed that the appellant had received Rs.51,82,322/- for having providing security agency service during October, 1998 to December 2001 (excluding the amount received vide Bill No.172 to 191 of December 1999). Responding to summons issued, Shri Rajkukar Kumawat, the proprietor of company drew up the statement in his own handwriting left the office abruptly but left the office abruptly, leaving the statement unsigned.
5. Assuming that the appellant had provided security agency service during 16.10.98 to 24.3.2002, in particular upto December 2001, and had received consideration of Rs.51,82,322/- during the period but had failed to submit service tax returns nor remitted the service tax due, proceedings were initiated by a show cause notice dated 15.1.2004, proposing recovery of the stipulated tax, besides interest and penalties.
6. The appellant submitted its replies on 23.2.2004, 28.1.2008, 30.4.08 and 14.9.2010 besides appearing at the personal hearing on 14.9.2010. The defence of the appellant may be summarized. According to the appellant, during the period in issue it provided no security agency service. It had merely introduced sweepers, peons, receptionist and other workers to the service recipients; and since it was not qualified in personnel management nor possesses experience in said trade, cannot be considered to be a Manpower Recruitment Agency. Alternatively, the appellant pleaded that for the period prior to 24.4.2002, he was ignorant of the law and of any liability to service tax on manpower recruitment agency service. Another contention urged was the gross amount received from the customers included the component of salaries of persons supplied and PF and employees state insurance premia, paid to employees deputed to the customer, and these amounts should be excluded and the net income of the appellant alone should be considered as the gross taxable value, under Section 67 of the Act.
7. It however requires to be noticed, as concluded by the primary authority and reiterated by the Appellate authority as well , that the appellant failed to provide even a scintilla of evidence or any material in support of its contention that it had provided manpower recruitment or supply agency service and not security agency service, except the oral assertion. No material was provided by the petitioner to substantiate its claim for the alternative classification to the one suggested by Revenue. This information and the substantiating material if any, is exclusively within the province of the appellant and is therefore its burden to establish its claim as to the alternative classification of the service. The appellant failed to discharge this burden.
8. On the aforesaid analysis, the conclusion by the primary authority as confirmed by the Appellate authority, that the appellant had provided security agency service is seen to be correct. The appellant was subsequently registered for providing security agency service and had also reflected in its accounts that the consideration received was for providing security agency service during the relevant period.
9. On the above analysis, the impugned order requires no interference. Ld. Counsel would also contend that imposition of penalties is in the circumstances, harsh and arbitrary. This contention does not commend acceptance. As the petitioners liability to service tax is unassailable and since the failure to file returns or remit service tax is clearly willful and calculated to evade tax, we find no justification for interfering with the imposition or the quantum of penalties assessed.
10. The appeal is without merits and is dismissed but without costs.