2016 (11) TMI 1142 - AT - Service Tax

Demand - whether the appellant is eligible for cum-tax benefit - TV/Radio programme production service - Section 73(3) of the Finance Act, 1994 - Held that - On perusal of the ledger account produced by the appellant and comparing with the invoices, it is noted that the appellant has received amount as stated in the invoices. This reveals that the appellant has not collected any separate amount as service tax. Therefore the case of the appellant that the amount collected included the service tax portion also needs to be analysed. view thereof the matter needs to be remanded to the original authority to consider the issue whether the appellant is eligible for cum-tax benefit on the three invoices referred above. The appellant is at liberty to furnish any further evidence to establish his case which shall be considered by the adjudicating authority. the result, impugned order is set aside and remanded for denovo adjudication - appeal allowed by way of remand.

Summary

Issues:
1. Demand of service tax, interest, and penalty upheld by Commissioner (Appeals).
2. Appellants providing TV/Radio program production service.
3. Non-payment of service tax on received amounts.
4. Show-cause notice issued for demand of service tax.
5. Adjudication confirming demand, interest, and penalty.
6. Appeal to Appellate Tribunal challenging the decision.
7. Argument for cum-tax benefit by the appellant.
8. Department's defense against cum-tax benefit.
9. Allegation of suppression of facts by the appellant.
10. Denial of cum-tax benefit in computing the demand.
11. Remand for further consideration of cum-tax benefit eligibility.

Analysis:
The case involved the appellants, engaged in TV/Radio program production services, disputing the demand of service tax, interest, and penalty upheld by the Commissioner (Appeals). The Department identified non-payment of service tax on amounts received from various entities, leading to a show-cause notice for a substantial sum. The adjudicating authority confirmed the demand, interest, and penalty, which was subsequently upheld by the Commissioner (Appeals), prompting the appeal to the Appellate Tribunal.

The appellant argued for cum-tax benefit, contending that the amounts received included service tax, reducing their liability. The Department, however, defended the demand, emphasizing the appellant's obligation to pay service tax on the entire amount collected from customers when not separately stated in invoices. Additionally, the Department alleged suppression of facts by the appellant to evade tax, justifying the penalty imposed.

Upon review, the Tribunal found merit in the appellant's argument regarding cum-tax benefit and noted discrepancies in the invoices and ledger accounts. Consequently, the Tribunal remanded the matter to the original authority for further examination of the appellant's eligibility for cum-tax benefit. The appellant was granted the opportunity to present additional evidence for consideration during the denovo adjudication, leading to the setting aside of the impugned order and allowing the appeal by way of remand.