2008 (1) TMI 85 - HC - Service Tax

Appellant plea is that actually, the SCN was to be issued u/s 73, but inadvertently, the provision was wrongly mentioned as Sec. 74 - such plea was never taken by appellant either before the Appellate Authority or before Tribunal - Revenue have rightly passed the order assessing the escaped Service tax by invoking sec. 74 - Only those substantial questions of law are to be considered and decided by HC, which are arising from the order of the Tribunal, in this case appeals are dismissed

Summary

Issues:
1. Assessment of service tax and penalty imposed on the respondent.
2. Appeal against the order of the Commissioner (Appeals).
3. Appeal before the Customs, Excise & Service Tax Appellate Tribunal.
4. Questions of law arising from the order of the Tribunal.

Assessment of Service Tax and Penalty:
The respondent, a holder of Certificate of Registration as an Air Travel Agent, filed quarterly ST-3 returns which were assessed by the Superintendent of Service tax. Subsequently, a show cause notice was issued to enhance the assessment alleging short levy of service tax. The Deputy Commissioner confirmed the demand and imposed a penalty. The respondent appealed before the Commissioner (Appeals) and then before the Tribunal, which allowed the appeal stating that Section 74 of the Act, pertaining to rectification of a mistake, was not applicable as there was no apparent mistake in the assessment. The Department challenged this decision, raising substantial questions of law.

Appeal Against Commissioner (Appeals) Order:
The Commissioner (Appeals) upheld the demand and penalty imposed on the respondent, leading to the respondent's appeal before the Tribunal. The Tribunal observed that the Department did not file an appeal before the Commissioner (Appeals) and questioned the action of the Department regarding the show cause notice and late decision. The Tribunal allowed the appeal, emphasizing that the provision of Section 74 was not applicable in this case.

Appeal Before the Tribunal:
The Tribunal allowed the respondent's appeal, stating that Section 74 was not applicable as there was no apparent mistake in the assessment. The Department challenged this decision, arguing that the Tribunal erred in its conclusions and actions. The Department raised three substantial questions of law related to the Tribunal's decision and the application of Section 74 in the case.

Questions of Law Arising from Tribunal's Order:
The Department raised three substantial questions of law before the High Court, focusing on the Tribunal's decision and the application of Section 74. The High Court analyzed the arguments presented by both parties, noting that the Department's claim that the show cause notice was issued under the wrong provision was raised for the first time in the appeal. The Court emphasized that only substantial questions of law arising from the Tribunal's order should be considered, and since the Department did not raise this argument before the Tribunal, the High Court dismissed the appeal, stating that no grounds existed to entertain it.