2018 (12) TMI 1425 - AT - Service Tax

Taxability - commission for marketing services - Reverse charge mechanism - principles of natural justice - Held that - The submissions made by the appellant have not been considered in proper perspective - Since the issue relates to calculation of actual service tax liability, which according to the appellant is not payable in absence of any provision of service, the matter should be remanded back to the original authority for a proper fact finding with regard to the actual service tax payable by the appellant - Appeal allowed by way of remand.

Summary

Issues:
Calculation of service tax liability based on export commission reflected in the balance sheet.

Analysis:
The case involved an appeal against an order passed by the Commissioner (Appeals), Central Excise, Mumbai, regarding the service tax liability of the appellant, engaged in the manufacture of bulk drugs. The appellant exported a substantial quantity of goods and paid commission to agents for marketing. The Service Tax department, during an audit, observed that the appellant had not paid appropriate service tax liability on the export commission reflected in the balance sheet. The department initiated proceedings resulting in an adjudication order confirming a service tax demand along with interest and penalties. The appellant contended that no service tax was required to be paid as the commission amount was reversed in the subsequent year. The Tribunal noted that the lower authorities did not properly consider the appellant's submissions regarding the calculation of actual service tax liability. As the issue pertained to the determination of payable service tax in the absence of any provision of service, the matter was remanded back to the original authority for a proper fact-finding process. The original authority was directed to consider the appellant's submissions and verify relevant books of accounts/records before making a fresh adjudication. The Tribunal allowed the appeal by way of remand, emphasizing that the appellant should be granted an opportunity of hearing before a new decision is made.

This judgment primarily addressed the dispute over the calculation of service tax liability concerning the export commission reflected in the balance sheet. The Tribunal acknowledged the appellant's argument that no service tax was due as the commission amount had been reversed in the subsequent year. However, it found that the lower authorities had not adequately considered the appellant's submissions. Therefore, the Tribunal remanded the matter back to the original authority for a thorough examination of the actual service tax payable by the appellant. The directive included a requirement for the original authority to review the appellant's contentions and examine the relevant books of accounts/records before reaching a fresh decision. The Tribunal's decision to allow the appeal by way of remand highlighted the importance of granting the appellant an opportunity for a hearing during the new adjudication process.