2021 (4) TMI 179 - HC - Service Tax

Levy of Service Tax - Section 66 D(g) of Finance Act, 1994 - HELD THAT - The learned counsel appearing for the respondent confirms that though the order has been noted by the officer while recording the submission of the petitioner, its ratio has neither been taken note of by the officer nor distinguished. In any event, she seeks to point out that, that order is, in fact, adverse to the assessee - This submission, prima facie, does not appear to be factually correct as the tax has been appropriated since the assessee in that case had collected the tax from its customers. In any event, it was incumbent upon the officer to have taken note of the order and any amount of explanation in this regard before me will not account for such lapse on the part of the authority. The matter remanded back to the authority to be heard afresh and a speaking order - petition allowed by way of remand.

Summary

Issues:
1. Eligibility for exemption from levy of service tax under Section 66 D(g) of Finance Act, 1994.
2. Consideration of petitioner's reply and reliance on other similar cases.
3. Examination of the decision in re: Chennai Digital Print Advertising Private Limited.
4. Failure to consider the ratio of the order in Chennai Digital Print Advertising Private Limited in the impugned order.

Analysis:

Issue 1: The primary issue in this case revolves around the eligibility of the petitioner for exemption from the levy of service tax under Section 66 D(g) of the Finance Act, 1994. The petitioner had sought exemption based on other cases where similar relief was granted. However, the court noted that while the reply was on record, the request for exemption and reliance on other cases had not been addressed. The court opined that the petitioner should seek rectification due to the non-consideration of their reply, which amounted to an error apparent on record.

Issue 2: The court adjourned the matter to allow the respondent to study whether the decision in the case of Chennai Digital Print Advertising Private Limited, cited by the petitioner, had been considered or distinguished in the impugned order. The respondent confirmed that the officer had noted the order but had neither considered its ratio nor distinguished it. The court observed that the order in question was not adverse to the assessee, as tax had been collected from customers. Consequently, the court decided to set aside the impugned order and remand the matter for a fresh hearing, directing the authority to pass a speaking order after considering the ratio of the Chennai Digital Print Advertising Private Limited order and any other relevant orders on the issue.

Issue 3: The court emphasized the importance of the authority taking note of relevant precedents and orders while making decisions. It held that the failure to consider the ratio of the Chennai Digital Print Advertising Private Limited order in the impugned order necessitated setting aside the decision and remanding the matter for a fresh hearing.

Issue 4: In conclusion, the court allowed the writ petition, directing the completion of the re-hearing process within eight weeks from the date of the judgment. The court closed the connected Miscellaneous Petitions without imposing any costs on either party.