ORDER
Jyoti Balasundaram, Vice President
1. After hearing both sides for some time on the application for waiver of pre-deposit of service tax of Rs. 1,15,94,714/- (out of which an amount of Rs. 43,69,620/- already stands deposited) and penalty of Rs. 1,02,65,966/-under the provisions of Section 76 and Rs. 2,00,00,000/- under the provisions of Section 78 of the Finance Act, 1994, we found that it was possible to dispose of the appeal itself at this stage and hence proceed to do so, after granting the prayer for stay.
2. We have heard both sides.
3. Service tax has been levied on taxable service rendered by the appellants herein who are engaged in broadcasting social, spiritual and religious programmes through Aastha channel under the category of “broadcasting” for the period from 16.7.2001 to 31.8.2004. The appellants, do not dispute the liability to service tax under the above heading; however, they contend that service tax can be charged only with respect to broadcasting charges and not with respect to reimbursable expenses, as per Trade Notice No. 7/98-ST dated 13.10.1998 issued by the Mumbai Commissionerate. They submit that they had produced documentary evidence to support the contention that they had incurred certain expenses on behalf of their clients, which were being reimbursed to them by their clients and, therefore, the quantum of tax is required to be reduced, as no service tax is payable on that part of the bills pertaining to expenses incurred by them and recovered from their clients. We find that the Commissioner has recorded a finding that in the absence of the documentary evidence in support of the stand of having incurred expenses on behalf of their clients, which expenses were reimbursed, the trade notice and circular dated 2.7.1997 relating to service tax on manpower recruitment agents and consulting engineers providing for exclusion of amounts incurred on behalf of the clients towards expenses which are reimbursed on actual basis, are not applicable. We note that the appellants have filed detailed charts before the Commissioner under cover of letters dated 30.6.2004 covering the period 15.7.2001 to 31.3.2002, dated 6.8.2004 covering the period 1.4.2002 to 31.3.2003, dated 13.8.2004 covering the period 1.4.2003 to 31.3.2004 and February 2005 for the period 1.4.2004 to 31.8.2004, containing particulars of invoices issued and details of payments received. If the Commissioner was not satisfied with the details provided in the charts, it was open to him to call upon the assessees to produce the copies of the invoices in order to verify the appellants’ claim that they had incurred expenses on behalf of their clients and that the clients had reimbursed these expenses. The interest of justice, therefore, requires that the impugned order be set aside and the case remitted to the adjudicating authority for fresh decision in the light of the above. All other issues including the plea of time-bar raised in miscellaneous application for adducing additional grounds, which application is allowed, are left open for de novo decision. We order accordingly. The Commissioner shall also consider the Chartered Accountant’s certificate dated 14.4.2007 certifying the quantum of reimbursement expenses incurred by the appellants, relied upon in the miscellaneous application for bringing on record additional evidence, which application is hereby allowed. Fresh orders shall be passed after extending a reasonable opportunity to the appellants of being heard in their defence.
4. The appeal is thus allowed by way of remand.
(Pronounced in Court)