2013 (12) TMI 261 - AT - Service Tax

Advertising agency service - Short payment of service tax - Penalty under Section 78 - Held that - The computation of the demand for the respective period has been done on the basis of the gross receipts shown in the respective bank statement/accounts of the appellant. The receipt figure shown in the annexure A to the show cause notice has been disputed by the appellant contending that the entire receipts had not been reflected therein for the respective years - since the reply was not a detailed reply filed by the appellant explaining/reconciling the difference between the receipt figures shown in the bank statements and the gross taxable value shown in ST-3 Returns, the adjudicating authority could not examine the reasons for such differences, as now explained by the appellant. In these circumstances, in the interest of justice and to ascertain the correctness of the service tax liability, the matter requires to be remitted back to the adjudicating authority for determination of all issues afresh. The appellants are directed to furnish their detail reply/explanation so as to facilitate the Department to assess the correct liability - appeal is allowed by way of Remand.

Summary

Issues: Appeal against Order-in-Original alleging incorrect taxable value disclosure in ST-3 Returns, demand confirmation, penalty imposition under Section 78.

Analysis:
1. Incorrect Taxable Value Disclosure: The appellants, engaged in advertising agency services, challenged the demand raised due to alleged incorrect taxable value disclosure in their ST-3 Returns for the period from April 2003 to March 2007. The appellant contended that the basis for computing the demand was not disclosed in the show cause notice, leading to discrepancies between the gross receipts in bank statements and the taxable value in returns. The appellant submitted a detailed explanation, certified by a Chartered Accountant, reconciling the differences. However, this detailed explanation was not presented before the original authority during adjudication. The Revenue argued that the burden lies on the assessee to explain discrepancies, as service tax is levied on gross taxable value received. The Revenue agreed to remand the case for considering the newly produced charts and explanations.

2. Chargeability of Service Tax: The core issue revolved around the chargeability of service tax on the alleged taxable value received by the appellant for providing advertising agency services. The demand computation was based on gross receipts from bank statements, disputed by the appellant, claiming not all receipts were accounted for. The basis used in computing the demand was not disclosed in the show cause notice. The appellant's reconciliation of actual receipts and taxable value through a certified statement highlighted six reasons explaining the differences. The Tribunal found that the detailed explanation provided by the appellant was crucial for assessing the correctness of the service tax liability. In the interest of justice, the matter was remitted back to the adjudicating authority for a fresh determination of all issues, directing the appellants to furnish a detailed reply to assist in assessing the correct liability.

3. Remand and Time Frame: The Tribunal allowed the appeal by way of remand, emphasizing the need for a detailed reply from the appellants to facilitate the Department in determining the correct liability. Considering that the appellants had already deposited a substantial amount, a time frame of four months was set for the adjudicating authority to decide the issue post the submission of relevant data by the appellant. This directive aimed to expedite the resolution of the matter while ensuring a fair assessment of the service tax liability.

In conclusion, the Tribunal's decision to remand the case underscored the significance of a detailed explanation from the appellants to clarify discrepancies and assist in determining the correct service tax liability, ensuring a just and informed resolution of the issues raised in the appeal.