2007 (6) TMI 114 - AT - Service Tax

Demand(Service tax) Appellant contended that the demand was not correct on the ground of demand was time barred and the demand can t enforced beyond 5 years Matter remanded to OA for de novo consideration

Summary

Issues:
1. Service tax demand for a period exceeding 5 years.
2. Applicability of service tax after receipt of amounts from dealers.
3. Entitlement to cum-tax benefit.
4. Lack of findings recorded by authorities.
5. Request for remand for re-examination of plea.

Analysis:
1. The appeal arose from a confirmation of service tax amount along with interest and penalty under Section 78 of the Finance Act, 1994, for a period exceeding 5 years. The appellants, working as Air Travel Booking Agents, contended that the demand was time-barred and cannot be enforced beyond 5 years. They argued that service tax is payable only after receiving amounts from dealers, which had not been received in this case. Additionally, they claimed entitlement to cum-tax benefit, which was not granted. Both authorities confirmed the demand without a speaking order, leading to the appeal.

2. The learned Counsel cited various judgments, highlighting that while the appellant's submissions were noted, the authorities failed to record their findings. It was argued that a remand was necessary for a re-examination of the plea. The plea was that service tax is payable post receipt of amounts from dealers, making the advanced demand unsustainable. As the demand was made beyond 5 years, the matter was deemed fit for remand for a fresh consideration.

3. Upon careful consideration, it was observed that the appellants' plea had not been examined by the Commissioner (Appeals). Although the submissions were recorded in the Order-in-Original, no findings were documented. It was reiterated that service tax is due after receiving amounts from dealers, and the demand exceeding 5 years was not justified. The appellants claimed no suppression, asserted entitlement to cum-tax benefit, and emphasized the limitation of a 5-year demand period. Consequently, the matter was remanded to the Original authority for a de novo consideration within four months, with an opportunity for the appellants to be heard.

4. The judgment concluded by pronouncing the decision in the open court, highlighting the need for a re-examination of the plea and a fresh consideration of the matter by the Original authority within the specified timeframe.