2014 (11) TMI 750 - AT - Service Tax

Remission of tax - On the basis of previous order Commissioner ordered remission of tax without issuing SCN - Held that - Inasmuch as the relied upon order has already been set aside and the matter is remanded back to the adjudicating authority, and the said order is the basis for issuance of the notice, the notice also would not survive and consequently the order passed by the Commissioner also would not survive and the matter has to be re-considered afresh by the Commissioner in terms of the directions given in the order of this Tribunal - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
1. Maintainability of the appeal against the demand notice issued by the Commissioner of Service Tax, Mumbai - II.
2. Validity of the notice directing the appellant to pay service tax for a specific period along with interest and penalties.
3. Interpretation of law regarding the imposition of penalties under Sections 76 and 77 of the Finance Act, 1994.
4. Effect of the order dated 30/03/2013 being set aside by the Tribunal on the subsequent demand notice and order-in-original dated 09/06/2014.

Analysis:

1. The appellant challenged an order titled demand notice dated 17/04/2014 passed by the Commissioner of Service Tax, Mumbai - II, directing payment of service tax for a specific period. The appellant argued that the notice was in the nature of an order as it directed payment without seeking cause for penalties. The appellant had challenged a previous order dated 30/03/2013, which was set aside by the Tribunal on 09/06/2014, leading to the argument that the subsequent notice would not survive. The Commissioner confirmed the service tax demand in the final order No. 44/ST-II/FS/2014 dated 09/06/2014, imposing penalties under Sections 76 and 77 of the Finance Act, 1994.

2. The appellant contended that the subsequent demand notice should not stand as the basis for the notice had been set aside by the Tribunal. The Tribunal agreed that since the order dated 30/03/2013 had been set aside and remanded back to the adjudicating authority, the subsequent notice and the order dated 09/06/2014 by the Commissioner would not survive. The matter was directed to be re-considered afresh by the Commissioner in line with the Tribunal's directions.

3. The Additional Commissioner (AR) for the Revenue acknowledged that the demand notice was not an order and that the subsequent order-in-original dated 09/06/2014 had been passed by the Commissioner. It was argued that no appeal would lie against the initial notice. The Tribunal, after careful consideration, allowed the appeal by remanding the matter back to the Commissioner for fresh consideration in accordance with the Tribunal's directions provided in the order dated 09/06/2014.

4. In conclusion, the Tribunal found in favor of the appellant, allowing the appeal by way of remand and disposing of the stay application. The decision was made based on the setting aside of the previous order dated 30/03/2013 by the Tribunal, which rendered the subsequent demand notice and the order-in-original dated 09/06/2014 invalid, requiring reconsideration by the Commissioner.