2017 (6) TMI 273 - AT - Service Tax

Delay in payment of service tax - telephone services - suo moto discharge in violation of Section 73 read with Section 70 & 67 of the FA 1994 - rent and call charges - Held that - in these cases, Committee on disputes has denied the permission to the department to file the appeals before this tribunal - both these appeals are not maintainable and consequently both are being dismissed as not maintainable - appeal dismissed - decided against appellant.

Summary

Issues:
- Appeal against impugned orders dated 24.11.2003 and 29.03.2004 passed by Commissioner (Appeals) allowing the appeal of the assessee and setting aside the order-in-original demanding interest and penalty.
- Delay in payment of service tax for specific periods.
- Demand of service tax on rent and call charges.
- Applicability of Section 73 read with Section 70 & 67 of the Finance Act 1994.
- Relief granted to the assessee based on the decision of the Tribunal in the case of BSNL Vs CCE Order No. 4/2003 dated 02.06.2003.
- Maintainability of the appeals before the Tribunal due to the denial of permission by the Committee on Disputes.

Analysis:
1. The appeals were filed by the Revenue against the impugned orders passed by the Commissioner (Appeals) allowing the appeal of the assessee and setting aside the order-in-original demanding interest and penalty. The department initiated action against the assessee for delay in payment of service tax for specific periods and for demanding service tax on rent and call charges, which were wrongly discharged. The adjudicating authority confirmed the demand, interest, and penalties imposed on the assessee.

2. The Commissioner (Appeals) allowed the appeal of the assessee based on the decision of the Tribunal in the case of BSNL Vs CCE Order No. 4/2003 dated 02.06.2003. The assessee argued that the delay in transferring the service tax to the government account was due to the procedure involved in paying telephone bills at various locations. The Commissioner (Appeals) relied on the Tribunal's decision and set aside the order-in-original, leading to the department filing the appeals.

3. During the hearing, the Revenue argued that the impugned order was not sustainable as the relief granted to the assessee was based on a specific case and not applicable generally. The department contended that no immunity from payment of interest could be granted unless provided in the statute. On the other hand, the respondent defended the impugned order and raised the issue of the maintainability of the appeals before the Tribunal due to the denial of permission by the Committee on Disputes.

4. The Tribunal, after hearing both parties and considering the records, found that the Committee on Disputes had denied permission to the department to file the appeals. Citing a larger bench decision, the Tribunal concluded that both appeals were not maintainable and subsequently dismissed them on that basis without delving into the merits of the case. The Tribunal emphasized that the denial of permission by the Committee on Disputes rendered the appeals not maintainable, following the precedent set by the larger bench decision and the decision of the Delhi High Court in a related case.

This detailed analysis covers the issues involved in the legal judgment comprehensively, outlining the key arguments presented by both parties and the Tribunal's decision regarding the maintainability of the appeals.