2008 (9) TMI 187 - AT - Service Tax

Impugned Review Order signed by Chief Commissioner who have not been appointed by Notification in Official Gazette - direction to file the present Appeal has been issued without having the necessary statutory power and jurisdiction and the same is, therefore not maintainable demand raised on basis of Segment Report and P/L A/c appellant plea is that tax is correctly paid as per bills or receipt matter requires re-examination of Segment Report and Bills - matter remanded

Summary

Issues:
1. Maintainability of Department's Appeal based on Review Order signed by unauthorized officials.
2. Validity of demand confirmed by Adjudicating Commissioner based on audited accounts and Segment Report.

Issue 1 - Maintainability of Department's Appeal:
The Department filed an Appeal against an Order passed by the Adjudicating Commissioner based on a Review Order signed by officials without proper authority. The Tribunal found that the Review Order was signed by individuals not appointed as Chief Commissioners of Central Excise through a Gazette Notification, as required by law. Without the necessary statutory power, the direction to file the Appeal was deemed non est in the eyes of the law. Consequently, the Appeal was held to be not maintainable and was rejected without delving into the merits of the case. The Tribunal emphasized the importance of official appointments through proper channels for exercising statutory powers.

Issue 2 - Validity of demand based on audited accounts and Segment Report:
The appellant-assessee challenged a demand confirmed by the Adjudicating Commissioner related to services provided in the Jamshedpur jurisdiction. The appellant argued that the demand was based on audited accounts and the Segment Report, which they claimed was an accounting concept under Accounting Standard-17 and not relevant for Service Tax purposes. The Department contended that since the demand was from audited accounts, it was valid and that the extended period was correctly invoked due to non-payment of tax on amounts reflected in the audited accounts. After detailed arguments from both sides, the Tribunal observed discrepancies between the Department's reliance on the Segment Report and the appellant's assertion of paying the correct Service Tax on the gross value of services. To resolve this, the Tribunal remanded the matter back to the Adjudicating Commissioner for fresh examination. The Commissioner was directed to engage a qualified professional familiar with the Accounting Standard followed by the appellant to assist in re-examining the matter. The appellant agreed to bear the cost of engaging the professional, and they were to be given a fair hearing before a fresh Order was passed.

In conclusion, the Tribunal dismissed the Department's Appeal due to lack of statutory authority and allowed the appellant's Appeal by remanding the matter for further examination. The decision highlighted the importance of proper appointments and adherence to statutory procedures in legal proceedings.