2017 (4) TMI 1052 - HC - Service Tax

Liability of tax - the Transporter in this case, though, an individual had rendered service to the appellant/ Assessee, which is a partnership firm - who is liable to pay tax, appellant or service provider? - Held that - the appellant/ Assessee, being a registered partnership firm, which falls under clause g of Rule 2(1)(d)(v) of the 1994 Rules, would be liable to pay the service tax, in respect of service provided to it, by an individual Truck Operator - the other aspect, as to whether the appellant/ Assessee would be entitled to claim the benefit of Notification dated 03.12.2004, has not been touched upon by the Tribunal - The Tribunal is, consequently, directed to re-hear the parties once again, after giving notice to the parties - appeal allowed by way of remand.

Summary

Issues:
Challenge to order of Customs, Excise and Service Tax Appellate Tribunal regarding liability to pay service tax and benefit of Notification No.32/2004.

Analysis:
The appellant challenged the Tribunal's order dated 03.05.2011, which allowed the Revenue's appeal without delving into the merits of the case. The appellant, a partnership firm, contended that it was the service recipient and thus not liable for service tax. Additionally, the appellant argued that if liable, it could claim the benefit of Notification No.32/2004, which the Tribunal overlooked due to the appellant's absence.

The respondent contended that the appellant, as a registered partnership firm, fell under Rule 2(1)(d)(v)(g) of the Service Tax Rules, making it liable for service tax. The Tribunal had correctly identified this aspect but failed to address the appellant's entitlement to the Notification dated 03.12.2004 due to the appellant's non-representation.

The High Court noted that the Tribunal had previously directed the Adjudicating Authority to consider the appellant's claim under the Notification, which was not addressed in the subsequent hearing. The appellant cited judgments from the Tribunal to support its case, highlighting a pending appeal by the Revenue to the Karnataka High Court concerning a related judgment.

Considering the circumstances, the High Court set aside the Tribunal's order and remanded the case for a fresh hearing on merits, directing the Tribunal to give notice to all parties for a re-hearing. The appeal was disposed of without costs.