2012 (6) TMI 273 - AT - Service Tax

Stay petition - secondary transport charges - denial of the abatement of 75% from the value of service available as per Notification No.13/2008 dt.1.3.2008 - tax paid before issuance of SCN - details not furnished before lower authorities - Held that - Details viz worksheets Chartered Accountant s certificate could not be furnished since the appellant closed down the business in 2010 itself and it took time to get the certificate prepared and also get the statement prepared so that there is no mistake on their part even though the calculations have been made and payment has also been made. Accordingly the impugned order is set aside and the matter is remanded to original adjudicating authority who shall decide the issue afresh after considering the worksheets submitted by the appellant

Issues:
1. Liability of Service Tax on secondary transport charges.
2. Abatement of 75% from the value of service as per Notification No.13/2008.
3. Submission of detailed statement and certificate by the appellant.
4. Reconsideration of the matter by the original adjudicating authority.
5. Requirement of pre-deposit.
6. Remand of the matter for fresh adjudication.

Analysis:
1. The main issue in this case was whether Service Tax could be demanded on secondary transport charges collected by the appellant from their customers. Initially, the appellant contested the liability of Service Tax. However, during the Stay Petition hearing, the appellant's counsel agreed that they were not contesting the liability. It was highlighted that the appellant had paid the entire amount of Service Tax with interest before the Order-in-Original was passed, even before the Show Cause Notice was issued.

2. The appellant claimed that the Department did not allow the abatement of 75% from the value of service as per Notification No.13/2008 while calculating the liability. The appellant submitted a detailed statement of the amount payable, verified by a Chartered Accountant, to support their position. The Tribunal observed that there was no dispute regarding liability, and the matter needed to be reconsidered by the original adjudicating authority in light of the submitted documents.

3. The Tribunal noted that the appellant had closed down their business in 2010, which caused a delay in preparing the necessary documents. Despite the delay, the appellant had made the payment and submitted the required worksheets and certificate. As there was no challenge to the liability, the Tribunal decided that the issue of correcting the amount paid and the question of penalty needed to be considered afresh by the original adjudicating authority.

4. Considering that the entire amount of Service Tax and interest had been paid by the appellant, the Tribunal determined that there was no requirement for a pre-deposit. With the consent of both parties, the Tribunal remanded the matter to the original adjudicating authority for fresh adjudication, directing them to consider the worksheets submitted by the appellant and provide a reasonable opportunity for the appellant to present their case.

5. In conclusion, the impugned order was set aside, and the matter was remanded for fresh adjudication, emphasizing the importance of considering the documents submitted by the appellant and allowing them a fair opportunity to present their case before the original adjudicating authority.

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