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2018 (8) TMI 480 - AT - Service TaxGTA Service - case of appellant is that the service tax pertaining to the GTA service in respect of transport invoices issued by the transporter, had also been paid by the transporter - Held that - The ld.Advocate further submits that there is no discrepancy in the figure of ₹ 13,261/- upto 30th June, 2012, but the demand of ₹ 59,349/- for the balance period, should be ₹ 38,848/- only. Since, the service tax to that extent had been charged by the transporter, which was duly paid by the appellant assessee. This fact has to be verified by the adjudicating authority. The penalty imposed under Section 77 (1)(c)(ii) and Section 78 by invoking the provision of Section 80 is set aside - Regarding service tax demand of ₹ 59,349/-, the matter is remanded to the adjudicating authority to consider the submissions of the appellant - appeal allowed by way of remand.
Issues:
Appeal against Order-in-Appeal, Failure to pay service tax under reverse charge, Ex parte adjudication, Double taxation issue, Discrepancy in service tax amount, Remand to adjudicating authority. Issue 1: Appeal against Order-in-Appeal The appellant filed an appeal against Order-in-Appeal No.36/HWH/ST/2017-18 dated 31.07.2017 passed by the Commissioner (Appeals) of CGST & Central Excise, Kolkata. The original demand of service tax, interest, and penalties were modified by the Commissioner (Appeals), leading to the present appeal before the Tribunal. Issue 2: Failure to pay service tax under reverse charge A show-cause notice was issued for the period 2009-2010 to 2012-2013 for the failure to pay service tax under the category of transport of goods by road under reverse charge. The adjudicating authority confirmed the demand of service tax along with interest and penalties. The Commissioner (Appeals) modified the adjudication order, reducing the demand but upholding penalties. Issue 3: Ex parte adjudication The appellant claimed they did not receive the show-cause notice and had no opportunity to respond or attend a personal hearing. The adjudication order was passed ex parte, leading to the appellant being unaware of the proceedings until the receipt of the order. Issue 4: Double taxation issue The Commissioner (Appeals) observed that the service tax for the GTA service had already been paid by the transporter and subsequently by the appellant to the transporter. Demanding the same tax again from the appellant would result in double taxation, contrary to the statutory provisions. The Commissioner (Appeals) verified invoices and payments, leading to a modification of the demand. Issue 5: Discrepancy in service tax amount The appellant pointed out a discrepancy in the amount of service tax confirmed by the Commissioner (Appeals). They provided statements of carriage inward for the relevant period and argued that the demand should be lower due to the tax already paid by the transporter. The appellant requested verification by the adjudicating authority. Issue 6: Remand to adjudicating authority The Tribunal set aside the penalties imposed and invoked Section 80. The matter of service tax demand was remanded to the adjudicating authority to consider the appellant's submissions and verify the discrepancy in the tax amount. The appellant was granted a reasonable opportunity of hearing in this regard. In conclusion, the Tribunal disposed of the appeal by setting aside penalties, remanding the service tax demand issue to the adjudicating authority, and ensuring a fair hearing for the appellant.
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