2017 (12) TMI 1093 - AT - Service Tax

Principles of Natural justice - case of appellant is that baseless allegations have been made without examining any documents or looking to the taxability aspect of different items intended to be taxed - Held that - Prima facie, perusal of show cause notice and adjudication order do not indicate following of course of natural justice by the Adjudicating Authority granting opportunity of defence to defend the allegations made in show cause notice. We do not say so by a hypertechnical reading of the same. Justice is not seemed to have been done without proper examination of nature of receipt, ascertaining taxability thereof and quality of evidence examined. Matter is remanded to learned adjudicating authority to readjudicate the matter by 31st March 2018 granting fair opportunity of hearing to the appellant.

Summary

Issues involved:
1. Allegation of non-payment of Service Tax on excess or mark up on ocean freight
2. Recovery of service tax for specific periods on freight surplus/ocean freight difference
3. Service Tax on brokerage
4. Sundry balance written off
5. Agency income collected from a specific company
6. Wrong availment/utilization of Cenvat credit
7. Difference in reconciliation of income shown in Balance Sheet and Service Tax Returns

Analysis:

1. The appellant raised concerns regarding the disputes related to non-payment of Service Tax on excess ocean freight. The appellant argued that the difference in freight charges received and paid does not fall under the purview of taxation as per the Finance Act, 1994. The Tribunal directed the adjudicating authority to thoroughly examine the nature of the receipts to determine the tax incidence and the applicable law.

2. Regarding the recovery of service tax for specific periods on freight surplus/ocean freight difference, the appellant contested the taxability of certain items without proper examination. The Tribunal emphasized the importance of following the course of natural justice and giving the appellant a fair opportunity to defend the allegations made in the show cause notice.

3. The issue of Service Tax on brokerage was raised, with the appellant arguing that brokerage should not be automatically taxed as steamer agent commission. The Tribunal directed a detailed examination of the character of brokerage to determine its taxability under the law.

4. Concerning the sundry balance written off, the appellant disputed the taxation based solely on book entries without considering the actual taxability of the amount. The Tribunal instructed the adjudicating authority to thoroughly examine the appellant's submissions on this matter.

5. The appellant challenged the tax imposition on agency income collected from a specific company, highlighting the lack of examination of the nature of the receipt. The Tribunal directed a comprehensive review of the character of agency income to ensure the legality of the tax imposition.

6. The allegation of wrong availment/utilization of Cenvat credit was contested by the appellant, claiming that the credit denial lacked proper justification. The Tribunal directed the examination of the Cenvat credit claim based on the relevant laws and regulations.

7. The discrepancy in the reconciliation of income between the Balance Sheet and Service Tax Returns led to a baseless demand for tax. The Tribunal clarified that tax liability arises only in the provision of taxable services, and the adjudication lacked proper examination of this aspect. The adjudicating authority was directed to provide clear reasoning for their decision and to justify it in accordance with the law.

In conclusion, the Tribunal remanded all the appeals to the adjudicating authority for a fair readjudication process, emphasizing the importance of following natural justice principles and thoroughly examining the tax incidence of each disputed item. The adjudicating authority was directed to provide a reasoned decision by a specified date, ensuring a just outcome for the appellant.