2020 (4) TMI 345 - AT - Service Tax

Condonation of delay in filing appeal - appeal filed after the delay of ten months and 29 days - Payment of service tax by the Post Master / Postal Department by Book adjustment instead of electronic payment in cash - power of Commissioner (appeal) to condone delay - HELD THAT - The demand of service tax for the second time is against the scheme of the Service Tax Act read with Article 265 of the Constitution of India. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Service tax liability on courier services.
2. Payment of service tax through book adjustment.
3. Dismissal of appeal on limitation grounds.

Analysis:
1. The appellant, a Post Master, was required to pay service tax on courier services. The show cause notice alleged non-payment of service tax amounting to ?9,61,025, partly through cenvat credit and partly through book adjustment. The appellant contested, providing clarification that the tax compliance responsibility lies with the concerned DDO/HPO, and service tax was accounted for and reported to the CGA. The impugned order confirmed the demand, imposing interest and penalty under Section 76.

2. The appellant appealed, arguing that payment through book adjustment is not illegal, especially as a Central Government Department. Reference was made to a Tribunal ruling supporting the practice based on CGA instructions. The Commissioner (Appeals) dismissed the appeal on limitation grounds due to delay in filing. The appellant contended that the tax was paid through book adjustment, a common practice, and emphasized that the payment was not denied by the Service Tax Department. The Tribunal found the demand for service tax payment a second time to be against the Service Tax Act and Article 265 of the Constitution, allowing the appeal and setting aside the impugned order.

3. The Tribunal's decision was based on the inadmissibility of demanding service tax payment for the second time, aligning with constitutional provisions. The appellant's argument regarding the legality of payment through book adjustment, supported by CGA instructions, was crucial in overturning the impugned order. The dismissal of the appeal on limitation grounds was overridden by the Tribunal's finding that demanding tax payment twice would be contrary to the legal framework, granting the appellant consequential benefits.