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TMI Blog2019 (3) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... er the issue regarding taxability of service for the relevant period - Appeal allowed by way of remand. - Civil Miscellaneous Appeal No.1749 of 2019 - - - Dated:- 5-3-2019 - Mr. Justice T.S. Sivagnanam And Mrs. Justice V. Bhavani Subbaroyan For the Appellant : Mr.N.Viswanath For the Respondent : Mr.Rajnish Pathiyil, Standing Counsel JUDGMENT T.S.SIVAGNANAM, J. We have heard Mr.N.Viswanath, learned counsel for the appellant and Mr.Rajnish Pathiyil, learned Standing Counsel accepting notice for the respondent as well as Mrs.R.Hemalatha, learned Senior Panel Counsel and Mr.K.S.Ramasamy, learned Senior Panel Counsel, who have assisted this Court on the legal issue raised in this appeal. 2. The assessee has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, that too, for the extended period of time as per law ? 4. The short issue, which falls for consideration, is as to whether the appellant was liable to pay service tax for the advertising agency services carried on by the appellant for the period upto 31.3.2003. 5. The matter pertains to the assessment years 2000-01 to 2002-03. 6. The respondent - Department conducted an internal audit in the premises of the assessee and during the course of verification of documents, the Revenue noted that there was a delay in payment of service tax ranging from 2 to 48 days. 7. The assessee gave an explanation stating that they had been paying the service tax on the invoice raised basis and not on the receipt basis. 8. This explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposal in the said show cause notice and imposed penalty to the tune of ₹ 3,14,344/- under Section 76 of the Finance Act, 1994. 11. Aggrieved by the said Order-in-Original dated 20.10.2008, the assessee preferred an appeal before the Commissioner of Central Excise (Appeals), Chennai-34 [hereinafter called the CCE(A)]. 12. One of the grounds raised before the CCE(A) was that the said services rendered by the assessee never fell within the ambit of taxable service of an advertising agency, which was accepted by the Department itself vide letter dated 05.5.2008 issued by the Ministry of Finance, Department of Revenue, Tax Research Unit. It was further contended that the revision of the registration certificate was granted to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee before the CCE(A), were also raised before the Tribunal. 16. However, the Tribunal, by the impugned order, dismissed the appeal after holding that the assessee could not take the plea of tax liability to state that they were not liable to pay the differential interest. The Tribunal made an observation that it would appear that the assessee was admitting the tax liability and of such interest though for a limited period and that since the tax dispute was not before the Tribunal, the appeal filed against the demand of differential interest was held to be not sustainable. 17. It may be true that the assessee did not contest the demand of service tax. Nevertheless, when the demand for interest was made, the assessee remit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay not be well within his jurisdiction to interfere with the taxabilty or for the partial amount of interest paid, he could have adjudicated the matter vis-a-vis the demand of differential interest. At least before the Tribunal, this issue could have been considered because the Tribunal being the Final Authority on facts. However, that was not done and that is why the assessee is before us. We find that if the service itself is found to be not taxable, the question of demand of interest does not arise. 21. However, the facts of the case are peculiar and even assuming that the assessee is able to succeed before the Authorities, they cannot claim refund of tax amount and interest, which were remitted by them voluntarily. Hence, we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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