2009 (3) TMI 19 - AT - Service Tax

Annual Maintenance Contract entered prior to 10.9.04 - demand confirmed on the enhanced rate of tax i.e. 10% as against 8% - Circular 56/5/2003.S.T. dated 25.04.2003 has clarified that the enhancement of rate of service tax shall not apply to the billing made prior to the date of passing of the Finance Bill AMC were entered into prior to 10.9.04 and the amounts have already been realized and the applicable service tax has been paid as per ruling rate - demand of differential tax not justified

Summary

Issues:
1. Dispute over the demand of service tax on an enhanced rate for Annual Maintenance Contracts entered into prior to a specific period.
2. Interpretation of a circular issued by the Board regarding the application of enhanced service tax rates.
3. Commissioner (Appeals) not deciding the issue on merits.

Analysis:
1. The appellant, engaged in manufacturing Washing Machines and providing maintenance services, faced a dispute regarding the demand of service tax at an enhanced rate for Annual Maintenance Contracts entered before a certain period. The department confirmed the demand based on the increased tax rate of 10% instead of the previous 8% ruling rate at the time of contract.

2. The appellant's Chartered Accountant referred to Circular 56/5/2003.S.T. dated 25.04.2003 issued by the Board, clarifying that the enhanced rate of service tax would not apply to billings made before the passing of the Finance Bill. The Chartered Accountant argued that since the maintenance contracts were initiated prior to 10.9.04, with payments and applicable service tax made at the ruling rate, there should be no demand for differential tax.

3. The Departmental Representative reiterated the original authority's findings, leading to the matter being brought before the Commissioner (Appeals). However, the Commissioner did not address the issue on its merits. The Tribunal noted that the Chartered Accountant's argument regarding the applicability of the old lower rate deserved consideration by the Commissioner (Appeals) for a decision on merits. Consequently, the Tribunal set aside the Commissioner's order and remanded the matter for a fresh decision without requiring any pre-deposit, emphasizing that no comments were made on the case's merits.

4. Ultimately, the Tribunal allowed the appeal by remanding the case, thereby disposing of the stay application as well. The decision was dictated and pronounced in the open court, ensuring transparency and procedural correctness in the judicial process.