2018 (12) TMI 789 - AT - Service Tax

Short payment of service tax - certain amount received on account of mobilisation advances from the service recipient - relevant piece of evidence not considered - principles of natural justice - Held that - The Commissioner (Appeals) has committed an error while ignoring the relevant piece of evidence as that of agreement just for want of date thereupon. He also ignored the affidavit in this respect and even the bank acknowledgement corroborating the subsequent event of withdrawal of the entire mobilisation amount of ₹ 1Cr., however with adjustment of ₹ 15 lakhs. Thus, the amount of ₹ 85 lakh cannot be the part of the taxable value. Appeal allowed - decided in favor of appellant.

Summary

Issues involved:
1. Alleged short payment of service tax on mobilisation advances.
2. Dispute regarding liability and adjustment of mobilisation amount.
3. Validity of settlement agreement and its admissibility.
4. Interpretation of relevant legal provisions and circulars.

Issue 1: Alleged short payment of service tax on mobilisation advances:
The appellant, engaged in Works Construction Services, received mobilisation advances from a service recipient but failed to discharge the service tax liability on these advances at the time of receipt. The Department alleged short payment of service tax for the years 2012-13 and 2013-14. A Show Cause Notice was issued proposing recovery of the alleged short payment. The Order confirmed the proposal, leading to an appeal before the Commissioner(Appeals) who upheld the decision, resulting in the appeal before the Tribunal.

Issue 2: Dispute regarding liability and adjustment of mobilisation amount:
The appellant argued that a settlement agreement was reached with the service provider for final payment based on services provided, with a significant portion of the mobilisation amount returned to the service recipient. The Department contended that the liability on the remaining mobilisation amount was not discharged. The Commissioner(Appeals) upheld the liability, emphasizing the lack of documentary evidence supporting the cancellation of the work order.

Issue 3: Validity of settlement agreement and its admissibility:
The appellant presented evidence of a settlement agreement and subsequent actions indicating the return of a substantial portion of the mobilisation amount. The Commissioner(Appeals) questioned the validity of the agreement due to the absence of a date and raised concerns about the adjustment made post-agreement. The Tribunal considered the evidence, including the affidavit and bank acknowledgment, to support the appellant's position that the remaining mobilisation amount should not be taxable.

Issue 4: Interpretation of relevant legal provisions and circulars:
The Tribunal analyzed the legal provisions and circulars related to advance payments for services and the taxability of such amounts. Citing precedents and circulars, the Tribunal concluded that the appellant's liability should be based on services provided and that the amount withdrawn by the service recipient should not be considered taxable. The Tribunal set aside the Order under challenge, allowing the appeal.

This detailed analysis covers the key issues involved in the legal judgment, providing a comprehensive overview of the arguments, evidence, and decisions made by the authorities and the Tribunal.