2010 (2) TMI 350 - AT - Service Tax

Small Service Provider- The learned advocate claimed that Commissioner (Appeals) has rejected the claim for SSI exemption on the ground that the gross turn over of the appellant exceeded Rs. 10,00,000/-. He drew our attention to para 2(viii) of Notification No. 6/2005-S.T., dated 1-3-05 which provides that the exemption would not be available if the aggregate value of services rendered by the provider of services in the previous year exceeded Rs. 4 lakhs. Held that- no discussion on particular clause of notification in impugned order. Quantum of demand to be re-worked if SSI exemption allowed. Matter remanded to Commissioner for fresh consideration. valuation- abatement to chemicals used in tyre retreading. Service portion and supply of chemicals contended as shown separately and exemption for materials admissible. Held that- Tribunal decision in favour of assessee on benefit under Notification No. 12/2003-S.T. not cited before Commissioner. Matter remanded back.

Issues:
1. Calculation of service tax on retreading of old tyres.
2. Demand for service tax for different periods.
3. Rejection of SSI exemption claim.
4. Exclusion of material cost from service tax calculation.
5. Remand for fresh consideration by Commissioner (Appeals).

Analysis:

1. Calculation of service tax on retreading of old tyres:
The appellant, engaged in providing service of retreading old tyres, paid service tax only on labor charges, excluding the cost of chemicals and tyres. The department issued show cause notices demanding service tax for specific periods, alleging deliberate evasion and demanding tax on the full amount charged for retreading. After adjudication and appellate proceedings, the demand was confirmed, and penalties were imposed under the Finance Act, 1994. The Tribunal found the matter required remand and allowed the stay petition for final disposal.

2. Demand for service tax for different periods:
Show cause notices were issued for different periods, invoking extended periods and alleging suppression of facts. The appellant's request for the benefit of SSI exemption notification was rejected, and penalties were imposed. The Tribunal remanded the matter for fresh consideration, waiving the pre-deposit requirement and allowing the appeal for final disposal.

3. Rejection of SSI exemption claim:
The Commissioner (Appeals) rejected the appellant's claim for SSI exemption based on the gross turnover exceeding a specified amount. The appellant argued that the exemption should apply as the activity was not previously liable to service tax. The Tribunal observed that the Commissioner failed to consider the relevant notification clause and remanded the matter for reevaluation, emphasizing the need to rework the demand if SSI benefit is extended.

4. Exclusion of material cost from service tax calculation:
The appellant argued for the exclusion of material costs sold separately in invoices from service tax calculation, citing tribunal decisions supporting this view. The Tribunal agreed to remand this issue for consideration, noting that previous decisions were not cited before the Commissioner. It was highlighted that if all issues favor the appellant, the total amount paid would cover the service tax payable.

5. Remand for fresh consideration by Commissioner (Appeals):
The Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a fresh decision, allowing the appellants to present their case. It was emphasized that all issues are to be kept open for reconsideration, ensuring a comprehensive review of the case.

This detailed analysis highlights the key issues addressed in the legal judgment, focusing on the calculation of service tax, demand for tax for different periods, rejection of SSI exemption claim, exclusion of material costs, and the remand for fresh consideration by the Commissioner (Appeals).

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