2011 (7) TMI 335 - AT - Service Tax

Penalties under Section 76 & Section 77 - service tax not paid on the amounts received - the appellants submits that appellant had not received the amounts but had only billed for the same and the submissions made by them that actually amount received was less has not been considered and reconciliation statement was produced by the learned Commissioner (Appeals) who did not consider the same since it was not before the original adjudicating authority - Therefore, the matter is required to be remanded to the original adjudicating authority for verification of the reconciliation statement produced before the Commissioner (Appeals) and also other documentary evidences etc. that may be available with the appellants - It would be appropriate to waive the requirement of pre-deposit of balance amount by accepting the offer made by the learned advocate to deposit Rs.25,000/- and remand the matter to the original adjudicating authority.

Summary

Issues: Service tax liability for the period from October 2004 to March 2005, penalties imposed under Section 76 & Section 77 of Finance Act, 1994, failure to produce reconciliation statement before original adjudicating authority, disagreement on the inclusion of service tax in the value of services rendered, request to deduct cenvat credit from the duty demanded, request for remand to original adjudicating authority for verification of reconciliation statement and other evidences.

Analysis:
The case involved a demand for Rs.84,425/- as service tax for the period from October 2004 to March 2005, along with penalties under Section 76 & Section 77 of Finance Act, 1994. The appellant contended that they had only billed for the amounts and had not actually received them. They argued that the reconciliation statement, showing lesser amounts received, was not considered. Additionally, they sought to deduct travel expenses and cenvat credit from the duty demanded. The appellant requested a remand to the original adjudicating authority for further verification and submission of necessary documentary evidence.

The learned advocate for the appellant highlighted that the reconciliation statement was not produced before the original adjudicating authority, leading to a lack of consideration of crucial aspects. The Departmental Representative (DR) argued that the departmental officers relied on the service tax return, which included service tax in the total amount, while invoices showed service tax separately. Both parties agreed on the need for a remand to the original adjudicating authority for verification of the reconciliation statement and other evidences.

The Tribunal acknowledged the agreement between the parties and directed the appellant to deposit Rs.25,000/- within four weeks. The matter was remanded to the original adjudicating authority for a fresh adjudication after considering the reconciliation statement and other documentary evidence. The requirement of pre-deposit of the balance amount was waived, and the stay petition and appeal were disposed of accordingly.