2011 (5) TMI 487 - AT - Service Tax

Demand - maintenance or repair service - demand of service tax of Rs. 46,945/- - According to assessee demand should not be more than Rs. 25,935 on the basis of reconciliation statement - held that - the appellate authority has not stated the quantitative details of any short-payment of service tax, nor has it categorically stated that the assessee collected service tax from the service recipients and did not pay any part thereof to the Revenue. Had the authorities examined the reconciliation statement and allied documents furnished by the assessee, they could have arrived at a categorical finding. - Matter remanded back.

Summary

Issues involved:
Demand of service tax and education cess, imposition of penalties, invocation of extended period of limitation, reconciliation statement submission, benefit of Section 80 of the Finance Act, 1994.

Analysis:
The appeal was filed against the demand of service tax, education cess, and penalties imposed on the assessee for providing maintenance or repair services to a specific entity. The department issued a show-cause notice invoking the extended period of limitation due to alleged suppression of facts by the assessee regarding the collection of service tax. The appellant contended that they were liable to pay a lesser amount of service tax and education cess based on a reconciliation statement submitted to the original authority. The Assistant Commissioner confirmed the demand and penalties, which was upheld by the Commissioner (Appeals).

In the appeal, the assessee maintained their stance based on the reconciliation statement, claiming no additional amount was due to the Revenue. They argued for the waiver of penalties under Section 80 of the Finance Act, 1994, citing no intention to evade service tax payment. The authorized representative reiterated the grounds of appeal, emphasizing the payments made by the assessee towards service tax and education cess, supported by relevant challans and attested documents.

The Tribunal noted discrepancies in the consideration of the payments made by the assessee in the orders of the lower authorities. Despite the department's claims of short-payment of service tax, the orders did not explicitly address the reconciliation statement and related documents provided by the assessee. The Tribunal highlighted the importance of examining all materials to make a well-founded decision on the intention to evade tax payment. Consequently, the Tribunal set aside the lower authorities' orders, remanding the case for a fresh adjudication considering the reconciliation statement and the assessee's conduct during the disputed period in line with the principles of natural justice.

In conclusion, the Tribunal directed the original authority to reevaluate the dispute, taking into account the reconciliation statement and associated documents to determine the demand of service tax and education cess. The Tribunal emphasized assessing the assessee's conduct during the disputed period to decide on the applicability of the benefit under Section 80 of the Finance Act, 1994.