2014 (5) TMI 261 - HC - Service Tax

Refusal of application for rectification of mistake by the tribunal - levy of penalty for late payment of service tax - security services - raising additional grounds / evidence in appeal - Held that - Rule 5, if examined closely, permits under certain circumstances, the Commissioner (Appeals) to take on record and examine additional evidence produced before it and, once those circumstances exist for so permitting evidences, the only requirement would be to allow a reasonable opportunity to the other side to produce any evidence in rebuttal. Both, Commissioner (Appeals) and the Tribunal have committed error in not considering the additional grounds raised by the appellant before it. As it could be noted very clearly that these were the legal grounds which could have been raised at an stage before any authority as laid down in the decision rendered in case of Sanghvi Reconditioners Pvt. Ltd. v. Union of India (2010 (2) TMI 6 - SUPREME COURT) on which the Commissioner (Appeals) sought to rely upon and the said proposition hardly requires any further elaboration and yet both the authorities having failed to entertain these new legal grounds for which already the facts were existing on record, the appellant has succeeded in convincing us of a need to interfere with the orders of both the authorities by answering the question framed in its favour. Matter remanded back to Commissioner (Appeals) for consideration of these issues afresh - Decided in favor of assessee.

Issues Involved:
1. Whether the Tribunal's rejection of the appellant's appeal without considering substantive grounds and submissions was justified.
2. Whether the Tribunal's refusal to rectify the mistake in its order was correct.
3. Whether the appellant was liable for penalties due to late payment of Service Tax.

Issue-wise Detailed Analysis:

1. Tribunal's Rejection of Appeal:
The appellant, a sole proprietor providing security services, challenged the Tribunal's decision that upheld the Commissioner (Appeals)'s order which confirmed the Service Tax liability along with interest and penalties. The appellant argued that the Commissioner (Appeals) wrongly prevented them from raising substantive legal grounds in their appeal. The Tribunal's order emphasized the appellant's repeated defaults in Service Tax payment and justified the imposition of penalties without addressing the new legal contentions raised by the appellant.

2. Refusal to Rectify Mistake:
The appellant filed an application for rectification of mistake, arguing that their written submissions and relied-upon decisions were not considered by the Tribunal. The Tribunal rejected this application, stating that the order was based on the appellant's repeated defaults and the show cause notices issued. The Tribunal concluded that there was no mistake in not discussing the written submissions or the cases relied upon by the appellant, as the decision was made considering the overall circumstances and the orders of the lower authorities.

3. Liability for Penalties:
The appellant contended that they should not be liable for penalties solely due to late payment of Service Tax, especially when they had filed ST-3 returns declaring the full value of services. They argued that their firm, being a proprietorship, should not be considered a "Security Agency" as per Sections 65(93) and 65(105)(W) of the Finance Act, supported by Board Circulars and Tribunal judgments. Additionally, they cited precedents where penalties were not imposed in similar circumstances involving interpretation of law and exclusion of staff salary and infrastructural expenses from assessable value.

Court's Reasoning and Decision:
The court examined Rule 5 of the Central Excise (Appeals) Rules, 2001, which allows the Commissioner (Appeals) to admit additional evidence under certain conditions. The court noted that the appellant's case involved raising new legal grounds rather than additional evidence, which should be permissible. The court highlighted that legal contentions can be raised at any stage before any authority, including the High Court and the Supreme Court.

The court referred to the Madras High Court's decision in R.K. Herbals v. State of Tamil Nadu, which emphasized that new legal grounds based on existing facts should be allowed to ensure correct assessment of tax liability. The court concluded that both the Commissioner (Appeals) and the Tribunal erred in not considering the additional legal grounds raised by the appellant.

Conclusion:
The court quashed the impugned orders of both the Commissioner (Appeals) and the Tribunal, directing the Commissioner (Appeals) to reconsider all grounds raised by both parties. The appeal was allowed, and the parties were instructed to proceed with the matter promptly. The related civil application was disposed of accordingly.

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