2011 (3) TMI 1259 - AT - Service Tax

Commissioning and Installation of Telephone Exchange services - Held that - The very issue of liability to tax itself is doubtful. It is not clear how the services of providing telephone is charged under the heading of Commissioning and Installation . It is true that this issue was not contested at the adjudication stage or at the appellate stage. At the same time the department is supposed to know the meaning of each entry imposing service tax. It cannot be mis-guiding or taking benefit of the ignorance of an individual who is a small business man. Therefore this issue also has to be examined - remit this matter to the adjudicating authority to examine the issue of taxability as well as eligibility for credit for which the appellant is making the claim.

Summary

Issues:
1. Incorrect charging of service tax under the heading of Commissioning and Installation of Telephone Exchange.
2. Disallowance of Cenvat credit due to submission of invoices in the name of another firm.
3. Negligence in providing proper invoices for input services received.
4. Doubt regarding the liability to tax for providing telephone services.

Analysis:
1. The Appellant, engaged in running a private telephone exchange as a franchisee of Airtel and MTNL, contests the service tax charged under the incorrect heading of Commissioning and Installation of Telephone Exchange. The Appellant argues that this view was not contested at the adjudicating or appellate stage, and the department should not take advantage of the individual's lack of awareness regarding the charging sections in the Finance Act, 1994.

2. The issue of disallowance of Cenvat credit arises as the Appellant submitted invoices in the name of another firm, M/s. Guru Kirpa Telecommunication, a proprietorship concern of the same Appellant. The Commissioner (Appeals) upheld the disallowance citing the failure to contest the findings of the adjudicating authority. The Appellant seeks a fresh consideration by providing all relevant records to establish the legality of the credit claims.

3. The negligence of the Appellant in providing proper invoices for input services received is highlighted. The Department argues that the Appellant failed to provide invoices related to the concerned firm and submitted bills for another firm. The clarity regarding the submission of fresh evidence before the Appellate Authority is also questioned.

4. The doubt surrounding the liability to tax for providing telephone services under the heading of Commissioning and Installation is addressed. The Tribunal emphasizes the need for a thorough examination of this issue, especially considering the Appellant's eligibility for input credit claims. The matter is remitted to the adjudicating authority for a de novo consideration of the taxability and credit eligibility issues.

In conclusion, the Tribunal waives the pre-deposit for the appeal, remanding the case for a fresh examination of the specified issues. It is clarified that if it is found that the service was not taxable, the Appellant will not be eligible for a refund of the tax paid initially. However, this determination will impact any future tax liabilities for the Appellant.