2015 (10) TMI 862 - HC - Service Tax

Confirmation of demand by the Commissioner ignoring the decision of Larger Bench as cited by the Appellant - Applicability of Decision in the case of Paul Merchants Ltd. v. Commissioner of C.EX., Chandigarh 2012 (12) TMI 424 - CESTAT, DELHI (LB) - Export of services - services of money transfer. Held That - when an assessee cites a decision of the Larger Bench of the Appellate Tribunal, before the adjudicating authority under the Finance Act, 1994, as amended, it will be incumbent upon the adjudicating authority to follow the decision of the Larger Bench of the Tribunal, unless the factual situation in the case before the adjudicating authority calls for a different interpretation. - No difference is pointed out by the Commissioner in either of the two cases, thus matter to be reconsidered afresh and same cannot overlooked

Summary

Issues:
Challenge against Ext.P6 order confirming service tax and penalty on the petitioner based on the liability to service tax as an agent of a foreign company, Western Union, despite a favorable decision by CESTAT in a similar case.

Analysis:
The petitioner challenged Ext.P6 order confirming service tax and penalty, arguing that the issue regarding liability to service tax had been decided in favor of a similar assessee by a three-member Bench of the CESTAT. The petitioner contended that the 2nd respondent, the Commissioner, was bound by the decision of the Larger Bench of the Appellate Tribunal and should not have ignored it. The petitioner emphasized the need for the 2nd respondent to show any factual distinctions between the petitioner's case and the case decided by the Larger Bench. The petitioner argued that the 2nd respondent should have followed the principles of judicial discipline and the decision of the Larger Bench unless the facts were different.

The Court considered the arguments presented and found merit in the petitioner's contention. It noted that the 2nd respondent did not highlight any distinguishing features between the petitioner's case and the case decided by the Larger Bench of the Appellate Tribunal. The Court emphasized that when an assessee cites a decision of the Larger Bench, the adjudicating authority must follow that decision unless the factual situation warrants a different interpretation. Since the 2nd respondent failed to point out any distinctions in the petitioner's case, the Court directed the 2nd respondent to reconsider the matter in light of the observations made in the judgment. Consequently, the Court quashed Ext.P6 order and instructed the 2nd respondent to review the case afresh, allowing the petitioner an opportunity to present their case within two months from the date of receiving the judgment.

In conclusion, the writ petition was disposed of with the direction for the 2nd respondent to re-examine the matter considering the principles of judicial discipline and the decision of the Larger Bench of the Appellate Tribunal, ensuring a fair assessment of the petitioner's liability to service tax as an agent of a foreign company.