M/S. Vodaphone South Ltd vs Commr.Of Service Tax, Kolkata
- CitationService Tax Appeal No. 70729/2013
Ratio decidendi
The rule this decision rests on
Where the Tribunal, on a stay application, finds the appeal can be disposed of at once and proceeds with the consent of both sides, it may waive the requirement of pre-deposit and dispose of the appeal itself without deciding the merits of the demand. Where an appellant has repeatedly failed to attend hearings despite sufficient opportunities, that conduct, though deplorable, does not by itself bar the appellate authority from remitting the matter where the interests of justice require the appellant be given a further opportunity to place its evidence before the adjudicating authority.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of the Order-in-Original No.78/Commr./ST/Kol/2012-13 dated-31.03.2013 passed by the Commissioner of Service Tax, Kolkata)
For approval and signature of:
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER ===========================================
1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities ?
M/s. Vodaphone South Ltd. APPELLANT(S) VERSUS Commr.of Service Tax, Kolkata RESPONDENT(S)
APPEARANCE
Sri Prasad Paranjape, Advocate FOR APPELLANT(S) Sri A. Roy, Supdt.(A.R.) FOR THE RESPONDENT(S)
CORAM: DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER
DATE OF HEARING & DECISION : 22.01.2015
ORDER NO._FO/A/75026/15 Per DR.D.M. MISRA
This is an application seeking waiver of pre-deposit of Service Tax of Rs.4.71 Crores and equal amount of penalty imposed under Section 78 of the Finance Act, 1994.
2. At the outset, the Ld. Advocate Shri Prasad Paranjape for the applicant submits that there was a mistake in reflecting the debit figure of service tax liability in their ST-3 Return for the period April, 2009 to September, 2009. He submits that the total service tax liability for the month of July was Rs.9.51 Crores, education cess Rs.19.03 Lakhs and Secondary and Higher Secondary cess Rs.19.51 Lakhs, totaling to Rs.9.80 Crores. He submits that the total amount of Service Tax, Education Cess and Secondary Higher Education Cess had been paid for the said month and it is not in dispute. However, while reflecting the said payments in the ST-3 Return, the amount debited towards Service Tax was wrongly shown as Rs.4.56 Crores and Education Cess as Rs.3.32 Crores. He submits that this error was rectified later by mentioning the correct opening balance in the subsequent ST-3 Return. He submits that even though all these details were submitted in their reply to the Notice, but due to some reason or the other, they could not appear before the adjudicating authority for personal hearing and explain the facts and figures, resulting into confirmation of the demand. He specifically undertakes that they would present before the Commissioner as and when called for hearing and explain in detail alongwith evidences to show that the short payment alleged in the show cause notice is because of incorrect entries posted in the ST-3 Returns and not due to non-payment of Service Tax. He prays that the matter may be remanded to the adjudicating authority.
3. The Ld. A.R. for the Revenue on the other hand, submits that the applicant could not place evidences before the Commissioner justifying error in the ST-3 Return for the period April, 2009 to September, 2009 and also failed to show that it was rectified in the subsequent Returns. He has no objection in remanding the case to the Ld. Commissioner for deciding the issue afresh. However, he insists that a time frame may be fixed for adjudication.
4. After hearing both sides for some time, we find that the appeal itself could be disposed off at this stage. Consequently, after waiving the requirement of pre-deposit we take up the appeal for disposal with the consent of both sides.
5. We find that the entire issue relates to some errors in the ST-3 Returns vis-`-vis private records maintained by the appellant. We find that the appellant did not attend the hearing in spite of sufficient number opportunities were allowed to them to appear before the Ld. Commissioner. This defiance and negligent attitude on the part of the appellant even though is deplorable, however, in the interest of justice, we are of the view that the appellant be given another chance to appear before the Ld. Commissioner and explain with evidences relating to their claim of incorrect entries made in the ST-3 Returns for the period April, 2009 to September, 2009. Consequently, we set aside the impugned order and remit the matter to the Ld. Adjudicating Authority, for deciding the issue afresh. The Ld. Advocate for the appellant undertakes to co-operate. Also, accepting the Ld. A.R.s submission, it would be appropriate that the entire adjudication process, as far as practicable, be completed within a period of three months from the date of communication of this order. Appeal is allowed by way of Remand. S.P. disposed off.
(Dictated and pronounced in the Open Court) Sd/- 30/01/2015 Sd/- 29/01/2015 (DR.I.P.LAL) (DR. D.M. MISRA) TECHNICAL MEMBER JUDICIAL MEMBER
k.b/-
Service Tax Appeal No. 70729/2013
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