2013 (6) TMI 237 - AT - Service Tax

Service tax liability on rendering the service under Business Auxiliary Services - assessee contested that this is the only stray incident wherein they have got a commission for giving some help regarding machines to be procured for wind mill energy & he is a manufacturer of chemicals - Held that - Consedring submission of appellant that he is eligible for the benefit of small scale service provider notification which has not been considered by the lower authorities but hastens to add that this point was not raised before the lower authorities. Since the issue involved was raised before the Tribunal for the first time adjudicating authority should be allowed to consider this submission and come to a conclusion.

Summary

Issues: Condonation of delay in filing appeal, Stay petition, Service tax liability, Small scale service provider benefit eligibility.

Condonation of Delay in Filing Appeal:
The judgment addresses the condonation of a 567-day delay in filing an appeal before the Tribunal. The appellant attributed the delay to a communication gap with their consultant who handled the case up to the Commissioner (Appeals) levels. The appellant, upon receiving the impugned order, informed the consultant to file an appeal, but it was not done in time. The Tribunal considered the director's affidavit explaining the error and referred to precedents where an assessee should not suffer due to mistakes by advocates or consultants. Consequently, the delay was condoned, and the Tribunal directed the registry to accept the stay petition and the appeal.

Stay Petition:
The Tribunal noted that the issue at hand was narrow, leading to the allowance of the stay petition filed by the assessee. Subsequently, the appeal itself was taken up for disposal, indicating a swift resolution due to the limited scope of the matter.

Service Tax Liability:
The judgment highlighted that the appellant was held liable for service tax under Business Auxiliary Services for a commission related to assisting in procuring machines for wind mill energy, despite being a chemical manufacturer. The appellant claimed eligibility for the small scale service provider notification, which was not considered by the lower authorities. The Tribunal acknowledged this as a unique incident and emphasized that the issue required adjudication considering the small scale service provider benefit, a point raised for the first time before the Tribunal. Therefore, the matter was remanded to the adjudicating authority for a fresh consideration, setting aside the impugned orders to ensure a fair decision following the principles of natural justice.

Small Scale Service Provider Benefit Eligibility:
Given the crucial issue of the appellant's eligibility for the small scale service provider benefit, raised for the first time at the Tribunal, the judgment underscored the need for the adjudicating authority to address this aspect. The Tribunal refrained from expressing any opinion on the case's merits, keeping all issues open and allowing the adjudicating authority to reconsider the matter afresh in light of the small scale service provider benefit claim. Ultimately, the appeal was allowed by way of remand, providing an opportunity for a comprehensive review by the adjudicating authority.