2018 (3) TMI 1128 - AT - Service Tax

Demand of differential duty - it was alleged that appellant has not provided CA certificate or records for verification whether there was factual error in entering the correct data in ST -3 return or not - Held that - In the impugned order learned Commissioner (Appeals) has recorded a finding that appellant has not provided any documents in support of their claim. The impugned order was passed on 31.7.2017 whereas all the relevant documents had been produced before the Commissioner (Appeals) on 5.7.2017 - As appellant has filed the relevant documents for verification or examination by the learned Commissioner (Appeals) on 5.7.17 whereas the impugned order has been passed thereafter after 26 days which shows that the learned Commissioner (Appeals) did not bother to consider the documents filed by the appellant which is his duty and bound to do so - the impugned order deserves no merits, hence, same is to be set aside. Demand of interest for the intervening period from the date of presentation of cheque till its realization - Held that - as per Rule 6 (2A) of the Service Tax Rules, 1994, the date of presentation of cheque is the date of payment of Service tax - date of presentation of cheque is the date of payment of service tax. In these circumstances, demand of interest is not sustainable against the appellant. As learned Commissioner (Appeals) has not taken into consideration the documents filed by the appellant, in that circumstances, the matter needs examination at the end of learned Commissioner (Appeals) to examine the documents - appeal allowed by way of remand.

Summary

Issues:
Appeal against demand of service tax on differential amount; Incorrect figures in ST-3 return leading to mis-calculation of abatement; Demand of interest for delayed payment of service tax; Failure to provide documents in support of claim; Date of presentation of cheque as date of service tax payment.

Analysis:
The appellant filed an appeal against the demand of service tax on a differential amount due to incorrect figures in the ST-3 return for a specific period. The incorrect data led to a miscalculation of abatement, resulting in a show cause notice being issued to demand service tax on the differential value. The adjudicating authority confirmed the demand, which was upheld by the learned Commissioner (Appeals) as the appellant failed to provide supporting data for their claim. The appellant contended that a clerical error led to the incorrect data in the return and argued that the correct data showed the service tax liability was discharged after availing the abatement. Additionally, the appellant challenged the demand of interest for delayed payment of service tax, citing the date of presentation of the cheque as the date of payment, as supported by a previous tribunal ruling.

The Tribunal observed that the learned Commissioner (Appeals) did not consider the documents provided by the appellant before passing the impugned order. The acknowledgment receipt of the documents showed they were submitted well before the order was issued, indicating a failure on the part of the Commissioner to review the evidence. Consequently, the Tribunal held that the impugned order lacked merit and set it aside. Regarding the demand of interest for delayed payments, the Tribunal referred to Rule 6(2A) of the Service Tax Rules, which deems the date of presentation of the cheque as the date of service tax payment. Relying on a previous ruling, the Tribunal concluded that the appellant had paid the service tax on time, making the demand for interest unsustainable.

In light of the above findings, the Tribunal remanded the matter back to the learned Commissioner (Appeals) to reconsider the documents submitted by the appellant within a specified timeframe and pass an appropriate order in accordance with the law. The appeal was disposed of accordingly, emphasizing the importance of considering all relevant evidence before making a decision.