2019 (2) TMI 1105 - AT - Service Tax

Franchise services - Failure to discharge service tax - Held that - This Tribunal in the case of JETKING INFORMATION LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI-I 2006 (11) TMI 595 - CESTAT MUMBAI , where it was held that the appellant was liable to pay service tax on the franchise services. Since the adjudicating authority failed to apply the observation of this Tribunal in the case of Jetking Information Ltd., the learned Commissioner (Appeals), in the impugned order, remanded the matter back to the adjudicating authority to re-determine the liability of tax, interest and penalty in accordance with the Tribunal s order - appeal allowed by way of remand.

Summary

Issues:
1. Appeal against Order-in-Appeal No. SR/33/ST-I/2015 dated 30.6.2015 passed by the Commissioner of Service Tax (Appeals), Mumbai-I.
2. Imposition of penalty on the appellant.
3. Remand for re-determination of tax, interest, and penalty in accordance with Tribunal's order.

Analysis:
1. The appeal was filed against an order confirming a demand for Service Tax on franchise services provided during a specific period. The Tribunal previously held the services liable for Service Tax and remanded the matter for recalculation of duty. Subsequently, the adjudicating authority recalculated the duty, leading to a reduced demand. The Revenue appealed this decision, resulting in a remand by the Commissioner of Service Tax (Appeals) for re-determination of tax, interest, and penalty in line with the Tribunal's order.

2. The appellant challenged the observation by the Commissioner (Appeals) regarding the imposition of penalty. The appellant contended that during the initial litigation, they had argued against penalty imposition, leaving it to the adjudicating authority for determination along with the demand. The Revenue argued that if no tax was payable or if the duty amount was reduced, the penalty would be correspondingly affected. The Tribunal had previously directed the adjudicating authority to consider the appellant's plea on penalty based on the recalculated Service Tax amount.

3. The Tribunal, in its decision, noted that the adjudicating authority failed to apply its previous observation regarding the calculation of Service Tax. Consequently, the Commissioner (Appeals) remanded the matter for re-determination of tax, interest, and penalty in accordance with the Tribunal's order. The Tribunal clarified that its prior remand did not waive the imposition of penalty and instructed the adjudicating authority to consider the appellant's plea on penalty based on the recalculated Service Tax amount. Therefore, the Tribunal upheld the Commissioner's decision to remand the matter for further assessment.

In conclusion, the Tribunal dismissed the appeal, affirming the remand for re-determination of tax, interest, and penalty as per the Tribunal's previous order. The decision emphasized the need for the adjudicating authority to consider the appellant's plea on penalty based on the recalculated Service Tax amount, ensuring a comprehensive assessment in line with legal requirements.