2018 (7) TMI 1599 - AT - Service Tax

Scope of SCN - all the grounds raised by the appellant not taken care of by impugned order - inclusion of commission amount in assessable value - benefit of cum-duty - Held that - It is noticed that in the year 2006-07 the impugned order treated the entire amount received as commission and treat the same as the assessable value for payment of duty. It is oppose that the total amount received as commission in the instant case as should be treat as exclusive of the commission and that have been granted - No reason have been recorded as to why the benefit of cum-duty have been granted to amount have been received. Also, it is apparent that while gross amount pertaining to the year 2007-08 has been added to assessable value, gross amount of income recorded in financial year 2008-09 but received in subsequent year has not been deducted - thus, the impugned order has failed to take notes of all the grounds raised by the appellant. The matter is remanded to the Commissioner (Appeals) for all the ground raised by the appellant in their appeal memorandum and pass a fresh order - appeal allowed by way of remand.

Summary

Issues:
Appeal against demand of Service Tax and penalty.

Analysis:
The appellant, engaged in selling passenger cars and providing services to insurance and finance companies, challenged the demand of Service Tax and penalty imposed. The appellant argued that the Balance Sheet and Profit & Loss Account should be prepared on a mercantile basis under the Companies Act, 1956. They contended that the figures prepared on accrual basis differed from the taxable value of service shown in the ST-3 returns on a receipt basis. The appellant submitted a reconciliation by a Chartered Accountant, which was not challenged or rejected during the proceedings. It was argued that certain entries in the Balance Sheet were separately calculated and not included in the total value. The appellant claimed that commission received from banks included Service Tax, but no records were presented. Additionally, discrepancies in Service Tax payments for different years were highlighted, indicating excess payments and uncorrected deductions. The appellant asserted that there was no basis for an extended period of limitation as all data was recorded in the accounts.

The Assistant Commissioner relied on the impugned order, which was examined by the Tribunal. Upon perusal, it was observed that the impugned order treated the entire amount received as commission in a particular year as assessable value for duty payment, without considering certain aspects. The Tribunal noted that the impugned order failed to address all the grounds raised by the appellant, including discrepancies in the treatment of income received in different financial years. Consequently, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) to consider all grounds raised by the appellant and issue a fresh order. The appeal was allowed by way of remand to the Commissioner (Appeals).

In conclusion, the Tribunal found discrepancies in the treatment of income and Service Tax payments by the appellant, leading to the setting aside of the impugned order and remand for a fresh decision by the Commissioner (Appeals) based on all grounds raised in the appeal memorandum.