2013 (12) TMI 326 - AT - Service Tax

Demand of Service Tax - GTA Service and Cargo Handling Service - Penalty u/s 78 - Held that - demand has been raised on the basis of figures shown in the respective balance sheets and that were shown in the Return even though it has been mentioned that on scrutiny of the records it revealed that the Appellant had rendered all these services & received taxable value against these services but not discharged appropriate Service Tax the same. On going through the reply to the show cause notice filed by the appellant, we find that they had furnished necessary break up, of taxable services and the non-taxable service, relating to the site formation and clearance service. Along with the reply they have also enclosed copies of work orders and other relevant documents to show that the services rendered by them fall under the category of exclusion clause contained in the definition of site formation and clearance. Even though the Appellant had produced all relevant documents in support of their claim that most of the services rendered by them were under the category of non-taxable services and hence no Service Tax is payable, these evidences/documents had not been scrutinized nor considered by the Ld. Commissioner. In these circumstances, we find it is an appropriate case for remand to the adjudicating authority to decide the issues afresh, after taking into consideration all relevant documents - Decided in favour of assessee.

Summary

Issues:
Demand of Service Tax and penalties imposed under various provisions of Finance Act, 1994 for alleged non-payment of Service Tax on services rendered under categories of site formation, GTA Service, and Cargo Handling Service during 2005-06 to 2008-09. Lack of specific break-up of demand against each service in the show cause notice. Allegation that the Appellant failed to discharge appropriate Service Tax on the Gross Taxable Value received against the services. Commissioner's confirmation of demand due to inability of the Applicant to produce documents supporting their claim of non-taxable services.

Analysis:
The judgment pertains to a case where the Revenue confirmed a demand of Service Tax amounting to Rs.2.59 Crores and imposed penalties under Section 78 and other provisions of the Finance Act, 1994 on the Appellant for allegedly not paying Service Tax on services provided under different categories from 2005-06 to 2008-09. The primary contention was that the Appellant had not discharged Service Tax on the Gross Taxable Value received for services like site formation, GTA Service, and Cargo Handling Service. The Commissioner upheld the demand stating that the Appellant failed to produce documents proving that the services rendered were non-taxable.

The Appellant argued that a significant portion of the demand related to site formation services and that they had provided details of the taxable services received under each category in response to the show cause notice. They claimed that the transportation of materials within the factory premises did not fall under Cargo Handling Services, citing a decision by the Hon'ble Jharkhand High Court. The Appellant submitted relevant work orders and documents to support their claim, which they asserted were not considered by the Commissioner.

The Revenue representative supported the Commissioner's findings but acknowledged that the documents submitted by the Appellant were possibly not presented before the Commissioner, suggesting a remand for fresh adjudication. The Tribunal, after hearing both sides, decided to dispose of the Appeal without pre-deposit of dues, with the consent of both parties.

The Tribunal observed that the issue revolved around the alleged short payment of Service Tax on services provided by the Appellant under different categories. They noted that the demand lacked specific details against each service and was based on figures from balance sheets and returns. The Tribunal found that the Appellant had provided a breakdown of taxable and non-taxable services, supported by relevant documents, which were not considered by the Commissioner. Consequently, the Tribunal remanded the case for reevaluation, directing the Commissioner to reconsider the issues in light of the Appellant's submissions and relevant documents. The Tribunal clarified that all issues were kept open, and the Appeal was allowed by way of remand, setting aside the impugned order.