2011 (2) TMI 19 - AT - Service Tax

Tribunal Remands Case for Reevaluation & Hearing, Emphasizes Factual Verification

The Tribunal remanded the case for reevaluation, setting aside the orders of the Commissioner (A) and the original authority. It emphasized the need for ... Excess service tax paid - excess paid service tax relates to payment on services received from foreign agents prior to 18.04.06, in which case no service tax was payable by the respondents – SCN refers to availment of credit on service by the respondents on several services and also mentions about payment of service as recipient in respect of services received from foreign agents - records do not indicate the exact amount of service tax paid by the respondents as deemed service provider, in respect of the services received from foreign agents - Rule 6 (3) of the Service Tax Rules, shall apply to the respondents – Matter remanded Issues:1. Adjustment of excess service tax paid by the respondent.2. Validity of adjustment prior to 01.03.07.3. Regularization under Rule 6 (3) of Service Tax Rules.4. Introduction of Rule 6 (4A) in Service Tax Rules.5. Applicability of Rule 6 (3) of Service Tax Rules.6. Factual verification of service tax paid by the respondent as deemed service provider.Analysis:1. The respondent claimed to have paid excess service tax during a specific period, which was adjusted by them while paying service tax for a subsequent month. The original authority held the adjustment was not covered under Rule 6 (3) of Service Tax Rules. The Commissioner (A) set aside the order, citing precedents supporting the respondent's position. The Tribunal found the matter required factual verification and remanded it to the original authority for reconsideration.2. The Legal Drafting Assistant (LDA) noted that the Ld. SDR argued against the validity of the adjustment made by the respondent before 01.03.07. The Ld. Advocate, on the other hand, supported the Commissioner (A)'s decision, citing relevant judgments and the introduction of Rule 6 (4A) in Service Tax Rules. The Tribunal emphasized the need for factual verification and remanded the case for reconsideration.3. The LDA observed that the Ld. Advocate argued for regularization under Rule 6 (3) of Service Tax Rules, contending that the respondent was not required to pay service tax prior to a specific date based on court decisions. The Tribunal acknowledged the arguments but stressed the necessity for factual verification before making a final decision.4. Regarding the introduction of Rule 6 (4A) in Service Tax Rules, the LDA highlighted the Ld. Advocate's argument that the rule's benefits should be extended to the respondent based on the issuance date of the show cause notice. The Tribunal considered the arguments and remanded the matter for further examination.5. The LDA pointed out that the Tribunal emphasized the need for factual verification of the service tax paid by the respondent as a deemed service provider. The Tribunal indicated that if the excess amount paid was not required as service tax, Rule 6 (3) of the Service Tax Rules would apply. Consequently, the Tribunal remanded the case for fresh consideration by the original authority.6. In conclusion, the Tribunal set aside the orders of the Commissioner (A) and the original authority, remanding the matter for reevaluation. The Tribunal instructed the original authority to grant a reasonable opportunity of hearing and consider the judgments cited by both sides before reaching a decision.