ORDER
M.V. Ravindran, Member (J)
1. The issue involved in this appeal is regarding imposition of penalty on the appellant who is providing advertisement agency services.
2. The matter has been listed for admission. I find from the provisions of Finance Act that there is no bar for filing appeal before the Tribunal in respect of service tax matters and the Tribunal can entertain any appeal for any amount confirmed. In view of the fact the appeal is admitted. Since the issue involved in this case is in very narrow compass the appeal itself is taken up for disposal with the consent of both sides after granting stay.
3. I have considered the submissions made by both sides and perused the record. I find from the record that the appellate authority upheld the order of the adjudicating authority without considering the correct provisions of law. It is the contention of the appellant that they are liable to deposit the service tax collected by them for the quarter after they receive payment from their clients. This specific provision is found in Rule 6(1) of the Service Tax Rules, 1994 which reads as under:
Rule [6. Payment of service tax. (1) The service tax shall be paid to the credit of the Central Government by the 5th of the month immediately following the calendar month in which the payments are received, towards the value of taxable services:
Provided that where the assessee is an individual or proprietary firm or partnership firm, the service tax shall be paid to the credit of the Central Government by the 5th of the month immediately following the quarter in which the payments are received, towards the value of taxable services:
Provided further that notwithstanding the time of receipt of payment towards the value of services, no service tax shall be payable for the part or whole of the value of services, which is attributable to services provided during the period when such services were not taxable:
Provided also that the service tax on the value of taxable services received during the month of March, or the quarter ending in March, as the case may be, shall be paid to the credit of the Central Government by the 31st day of March of the calendar year.]
It can be seen that this specific contention of the appellant was not at all considered by the lower authorities. Further, I find that coordinate Bench of the Tribunal in the case of Benson Advertisemet (P) Ltd. [2006 (3) STR (Tri.)] has held as under:
5. The point for determination is whether the tax is payable on receipt of service tax from the customers. The appellants’ case is that after the tax was received from their customers, they deposited such amount with the government treasury. Neither the appellate authority nor the lower authority has scrutinized the records to find out as to when the tax was received by the appellants. This scrutiny is important to determine whether any penalty is imposable on the appellants. I, therefore, remand the matter to the original adjudicating authority to scrutinize the records of the appellants and verify whether the contention of the appellants that they have paid tax within the stipulated time after they have received it from their customers in correct on otherwise.
4. I find that the lower authorities should consider the plea of the appellant regarding applicability of provisions of Rule 6(1) of the Service Tax Rules, 1994. Accordingly the appeal is allowed by way of remand to the adjudicating authority to consider the plea of the appellant and decide the matter afresh after granting an opportunity of presenting their defence. Appeal allowed by way of remand.
(Dictated & pronounced in the Open Court.)