2010 (10) TMI 415 - AT - Service Tax

Demand - Applicable Rate of duty - Adjudicating authority has confirmed the demand only on the basis of the rate applicable at the time of receipt of payments of services provided by them - When the service was provided, the invoices were raised, the service tax at that relevant time was either 5% or 8% - But the payment was realized by the respondents on the service provided as per invoices when the applicable rate was 8% or 10.2%.- Find that the Commissioner (Appeals) has rightly dealt with the issue by dropping the tax for the applicable rate which was the rate on the date of raising the bill when the services provided. Further submitted that assessee have provided the Chartered Accountant certificate certifying that the service tax liability has been discharged by sub-contractor and hence, set aside the demand - Do not find any infirmity in the impugned order - The appeal filed by the Revenue is rejected.

Issues:
- Appeal against dropped demand confirmed by lower Appellate Authority.
- Calculation of service tax payable based on audit findings.
- Alleged short payment leading to imposition of penalties.
- Lower Appellate Authority's decision to waive the demand.
- Disagreement over the rate of service tax and payment realization.
- Submission of invoices and documents by the respondent.
- Interpretation of service tax rate applicability at the time of service provision.
- Certification of service tax discharge by sub-contractor.
- Commissioner (Appeals) detailed analysis and decision on the issues.

Analysis:
1. The appeal was filed by the Revenue against the dropped demand confirmed by the lower Appellate Authority. The audit revealed that the respondent received taxable services totaling Rs. 39,72,685/- and Rs. 26,95,750/- for the years 2003-04 and 2004-05 respectively on Management Consultancy. The dispute arose regarding the calculation of service tax payable based on these findings, leading to an alleged short payment of Rs. 81,015/-. The adjudicating authority initially demanded the full amount but later reduced it to Rs. 47,500/-, imposing penalties under various sections of the Finance Act, 1994.

2. The key contention revolved around the disagreement over the rate of service tax and the timing of payment realization. The Revenue argued that the service tax should be paid at the applicable rate at the time of payment realization, emphasizing the lack of evidence regarding payment to M/s. Thomas Associates. Conversely, the respondent maintained that the service tax rate should apply at the time of service provision, not payment realization. They provided invoices and documents to support their position, including a Chartered Accountant certificate certifying the discharge of service tax liability by a sub-contractor.

3. The lower Appellate Authority, in its decision to waive the demand, carefully considered the submissions from both sides. It analyzed the details provided by the respondent and concluded that the demand reduction was justified. Specifically, it noted discrepancies in the calculation of service tax rates and the timing of service provision, ultimately ruling in favor of the respondent based on the evidence presented.

4. The Commissioner (Appeals) further examined the issues in detail and upheld the lower Appellate Authority's decision. The Commissioner emphasized the importance of applying the service tax rate at the time of raising the bill for services provided, rather than at the time of payment realization. Additionally, the certification of service tax discharge by the sub-contractor played a crucial role in supporting the respondent's case. Consequently, the Commissioner rejected the Revenue's appeal, affirming the decision to waive the demand against the respondent.

In conclusion, the judgment highlights the significance of accurate calculation and timing of service tax payments, emphasizing the legal principles governing service tax rate applicability. The detailed analysis by the lower Appellate Authority and the Commissioner (Appeals) underscores the importance of evidence and documentation in resolving tax disputes effectively.

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