2011 (4) TMI 257 - AT - Service Tax

Power of remand - Amendment of Section 35A(3) - Respondent, pleaded that this matter has not been remanded, that the Commissioner (Appeals) has decided the principle that the service tax can be charged only on the amount received excluding service tax and if the amount received includes the service tax, the same has to be excluded, that the Commissioner (Appeals) has only directed the original Adjudicating Authority to examine the respondent s claim that the amount received by them included the element of service tax, that this direction cannot be called remand - held that - the Commissioner (Appeals) has power the remand even after the amendment of Section 35 A (3) of the Central Excise Act - Decided against of revenue.

Summary

Issues:
Interpretation of service tax liability on gross amount received versus amount excluding service tax; Validity of Commissioner (Appeals) directing original Adjudicating Authority to examine respondent's claim; Power of remand by Commissioner (Appeals) in service tax matters.

Analysis:

1. Interpretation of service tax liability on gross amount received: The dispute in this case revolved around the service tax liability of the respondent, a Real Estate Agent service provider, for the period from October 2005 to March 2006. The department alleged that the respondent had short paid service tax amounting to Rs. 1,19,008 by not paying tax on the gross amount received but excluding the element of service tax. The Assistant Commissioner confirmed the demand, including interest and penalty. However, the Commissioner (Appeals) accepted the appellant's argument that service tax should be paid only on the amount received after removing the service tax element. This interpretation was based on the contention that the gross amount already included the service tax component.

2. Validity of Commissioner (Appeals) directing examination of respondent's claim: The Commissioner (Appeals) directed the original Adjudicating Authority to verify the respondent's claim that the gross amount charged included the service tax. The department contested this direction on the grounds that the Commissioner (Appeals) did not have the power to remand the matter, citing judgments from the Hon'ble Supreme Court and the Punjab & Haryana High Court. The department argued that the Commissioner (Appeals) should have scrutinized the claim instead of directing the original Assistant Commissioner. However, the respondent's counsel argued that the direction was not a remand but a necessary step to clarify the inclusion of service tax in the gross amount received.

3. Power of remand by Commissioner (Appeals) in service tax matters: The key issue was whether the Commissioner (Appeals) had the authority to remand the matter to the original Adjudicating Authority in service tax cases. The respondent's counsel cited precedents from the Hon'ble Gujarat High Court and Tribunal cases to support the contention that the Commissioner (Appeals) indeed had the power to remand even after relevant amendments. The Tribunal's decision in a similar case further reinforced the argument that the Commissioner (Appeals) could exercise such authority. Ultimately, the presiding judge, after considering both sides' submissions and reviewing the records, concluded that the Commissioner (Appeals)'s direction to verify the respondent's claim did not constitute a remand. Consequently, the judge dismissed the Revenue's appeal, upholding the Commissioner (Appeals)'s decision.

In summary, the judgment clarified the interpretation of service tax liability, validated the Commissioner (Appeals)'s directive to examine the respondent's claim, and affirmed the Commissioner (Appeals)'s authority to issue such directions in service tax matters.