2012 (8) TMI 562 - AT - Service Tax

Proceedings initiated dis-allowing abatement in respect of GTA - Assistant Commissioner while allowing benefit of abatement, confirmed demand rejecting respondent s plea that GTA service provider has already discharged service tax liability - Commissioner(Appeals) during appeal adjudicated on benefit under Notification No. 32/04 - Held that - Disputed issue was not any reference to claim of abatement which already allowed by the Asstt. Commissioner. Dispute before the Commissioner(Appeals) related to the actual payment of service tax of GTA service provider. Since, disputed issue does not stands considered and decided by the appellant authority, matter remanded back to Commissioner (Appeals) to deal with the appropriate dispute involved in the present appeal.

Summary

Issues:
1. Availability of 75% abatement in service tax.
2. Requirement of certificate of GTA in terms of Notification No. 32/04.
3. Discharge of service tax liability by GTA service provider.
4. Evidence requirement for proving service tax liability.

Analysis:
1. The proceedings were initiated against the respondent for recovery of service tax based on the contention that 75% abatement was not available to them due to the absence of a certificate of GTA as per Notification No. 32/04. The Asstt. Commissioner allowed the abatement but confirmed a demand of Rs.44,437 by rejecting the respondent's claim that the GTA service provider had already paid the service tax on the disputed amount. The original adjudicating authority noted the lack of evidence to show the discharge of the service tax liability by the respondents.

2. The Commissioner (Appeals) on appeal observed that the declaration made by the GTA service provider on the invoices at GRs issued by them was sufficient for the purpose of abatement as per Notification No. 32/04. Consequently, the appeal was allowed by the Commissioner (Appeals).

3. The Appellate Tribunal found merit in the argument put forth by the Id. AR that the dispute before the Commissioner (Appeals) was not related to the respondent's claim of abatement, which had already been allowed by the Asstt. Commissioner. Instead, the dispute centered around the actual payment of service tax by the GTA service provider as asserted by the respondent. It was noted that the appellant authority had not considered and decided the disputed issue. Therefore, the impugned order was set aside, and the appeal was allowed by way of remand to the Commissioner (Appeals) with directions to address the appropriate dispute involved in the appeal.