2014 (12) TMI 325 - AT - Service Tax

Discharge of service tax liability by BSNL - Payment to Department of telecommunication (DOT) by the applicant to be treated as payment of service tax or not - Held that - Payment of DOT has not been accepted by the department as discharge of their Service Tax liability since the amount has not been paid to the Ministry of Finance, Deptt. of Revenue, after the appellant separated from DOT. However, from the orders submitted by the ld. Chartered Accountant, we find that the Commissionerates at Jamshedpur and Ranchi have accepted the payment made to DOT as discharge of their Service Tax liability. Also, we find in similar circumstances this Tribunal has remanded the matter to the adjudicating authority for reconsideration of the payment made to DOT as discharge of liability towards Service Tax. Following the precedent, we remand the matter to the adjudicating authority for reconsideration of all issues afresh - Decided in favour of assessee.

Summary

Issues involved:
1. Modification of Tribunal's order for deposit of duty amount.
2. Challenge against recovery proceedings by the department.
3. Dispute regarding payment to DOT and computation error in demand.
4. Consideration of High Court's directions for restoration application and stay petition.
5. Remand of the matter to the adjudicating authority for re-consideration of issues.

Analysis:

Issue 1: Modification of Tribunal's order for deposit of duty amount
The applicant sought modification of the Tribunal's order dated 17-5-2012, which directed the deposit of the entire duty amount within eight weeks. The applicant's representative argued that the Tribunal's decision was based on the perception that the applicant was not serious in pursuing the stay petition. The applicant had filed a Miscellaneous Application earlier, and subsequent developments, including a Circular dated 1-1-2013 and a Writ Petition before the High Court at Ranchi, were highlighted. The applicant contended that a significant portion of the demand related to DOT payment, which had been accepted by the Commissioners of Jamshedpur and Ranchi. The representative also referenced a judgment from the Principal Bench of New Delhi in a similar case where such payment had been accepted. The Tribunal acknowledged the submissions and decided to re-examine the matter.

Issue 2: Challenge against recovery proceedings by the department
The applicant challenged the department's recovery proceedings, leading to a Writ Petition before the High Court at Ranchi. The High Court directed the Tribunal to address the applicant's Miscellaneous Application. The Tribunal considered the facts presented by both sides and found merit in the applicant's argument that a significant part of the duty amount was related to DOT payment, which had been accepted by other Commissionerates as proper discharge of Service Tax. The Tribunal noted an error in the computation of the demand and decided to allow the Miscellaneous Application in the interest of justice.

Issue 3: Dispute regarding payment to DOT and computation error in demand
The dispute revolved around the acceptance of payment made to DOT as discharge of Service Tax liability. Initially, the department did not accept this payment as discharge, but subsequently, the Commissionerates at Jamshedpur and Ranchi acknowledged it. The Tribunal referred to a previous order where a similar matter was remanded for reconsideration. Following this precedent, the Tribunal remanded the matter to the adjudicating authority for a fresh review. The appellant was directed to provide evidence supporting the payment to DOT and other relevant aspects, ensuring a fair opportunity for a hearing. The Tribunal emphasized that all issues were to be re-examined, and the appeal was allowed by way of remand.

Issue 4: Consideration of High Court's directions for restoration application and stay petition
The Tribunal considered the directions from the High Court at Ranchi regarding the restoration application and stay petition. In line with the High Court's expectations, the Tribunal decided to dispose of the appeal itself without the pre-deposit requirement, with the consent of both parties. The Tribunal emphasized the need for a reconsideration of all issues and directed the appellant to present all evidence related to the payment made to DOT and other relevant matters. The Tribunal set aside the impugned order, allowed the appeal by way of remand, and disposed of the Stay Petition.

Issue 5: Remand of the matter to the adjudicating authority for re-consideration of issues
Considering the various submissions and the High Court's directives, the Tribunal decided to remand the matter to the adjudicating authority for a fresh review. The Tribunal stressed the importance of re-evaluating all aspects, particularly the payment to DOT and any computation errors. The appellant was instructed to provide necessary evidence, and a fair hearing opportunity was ensured. The Tribunal clarified that all issues were to be kept open for re-examination, ultimately setting aside the impugned order and allowing the appeal through remand.