2013 (1) TMI 435 - AT - Service Tax

Short payment of service tax on Erection Installation and Commissioning Services - claim of the assessee that they have already paid service tax and produced some records before the first appellate authority - Held that - The factual matrix as to whether the assessee has discharged the service tax liability on the entire gross value of the amount received by them for the services rendered needs to be factually verified which is better to left to the adjudicating authority. Thus without expressing any opinion on the merits of the case the matter back remanded back to the adjudicating authority to reconsider the issue afresh and come to a conclusion after following the principles of natural justice.

Summary

Issues:
Short payment of service tax on Erection, Installation and Commissioning Services provided by the respondent. Interpretation of provisions of Section 85 of the Finance Act, 1994 regarding remand authority of first appellate authority.

Analysis:
The appeal pertains to the short payment of service tax on services provided by the respondent between 01.4.2007 to 30.11.2008. The adjudicating authority confirmed the demands raised in the show cause notice, imposed penalties, and demanded interest. The first appellate authority remanded the matter back to the adjudicating authority for reconsideration, based on the appellant's claim and evidence of discharging the service tax liability. The Revenue challenged this remand order, invoking Section 85 (5) of the Finance Act, 1994.

The presiding judge noted a disparity between the provisions of Section 85 of the Finance Act, 1994, and Section 35 of the Central Excise Act, 1944. While the Central Excise Act explicitly prohibits the first appellate authority from remanding a matter, no such restriction is present in Section 85 of the Finance Act, 1994. The primary issue at hand involved the factual verification of whether the respondent had indeed discharged the service tax liability as claimed. The judge deemed it necessary for the adjudicating authority to verify this factual aspect, especially concerning the entire gross value of the amount received for services rendered.

Without expressing any opinion on the case's merits, the judge remanded the matter back to the adjudicating authority to reevaluate the issue, ensuring adherence to the principles of natural justice. The cross objection filed by the assessee was supportive of the impugned order and was disposed of accordingly. The appeal by the Revenue was consequently disposed of in line with the remand decision, allowing for further factual verification by the adjudicating authority.

This comprehensive analysis of the judgment highlights the key issues of service tax payment discrepancies and the interpretation of statutory provisions governing the remand authority of the first appellate authority. The decision underscores the importance of factual verification in tax matters and the procedural aspects of remanding cases for reconsideration.