Ahmedabad CESTAT has held in Jay Travels v Commissioner of Service Tax that Benefit of small service provider's exemption under Notification No. 6/2005-ST, dated 1-3-2005 being a statutory benefit, should be considered by adjudicating authority. The Tribunal held that since the exemption of basic limit for small service provider is a statutory benefit, hence it is ought to be granted to the innocent person who did not raise the ground that his service charges were below the exempted limit for small service provide, before the lower authorities, hence the matter was remanded by the CESTAT to reconsider the issue a fresh.
The facts of the case were that the adjudicating authority confirmed demand of service tax on assessee under head travel agent's service. The assessee in instant appeal submitted that as its gross receipt was less than four lakhs during financial year 2004-05 it was eligible for benefit of small scale service provider under Notification No. 6/2005-ST and also for first four lakhs for financial year 2005-2006 under that notification.
It was held by CESTAT that there being no dispute to the services rendered by the assessee under the category of travel agent's service, the benefit of notification which are there in the statute, should have been automatically be given to the assessee. Even in the absence of any such claim the benefit should have been granted to the assessee. Be that as it may, the specific plea of the assessee that it was eligible for the benefit of Notification No. 6/2005-ST, cannot be disregarded for the services rendered up to the first four lakhs, during the period April 2005 to March 2006, for which the assessee is eligible for the benefit of notification, provided he has not crossed the limit of Rs. four lakhs during the preceding financial year. Since the issue was not taken up by the assessee before the lower authorities, in the interest of justice, that issue needs to be considered by the adjudicating authority in its correct perspective. In view of this, without expressing any opinion on the merits of the case, the impugned order was set aside and the matter was remanded to the adjudicating authority to reconsider the issue afresh.
CESTAT, AHMEDABAD BENCH
Jay Travels
v.
Commissioner of Service Tax, Ahmedabad
M.V. RAVINDARAN, JUDICIAL MEMBER
ORDER NO. A/306/WZB/AHD OF 2012
APPEAL NO. ST/323 OF 2010
MARCH 13, 2012
ORDER
2. The issue involved in this appeal is regarding service tax liability on the appellant under the category of Travel Agent Services.
3. Learned Chartered Accountant submits that they are not disputing that there services are covered under the category of Travel Agent Services. It is his submission that for the Financial Year April 2004 to March 2005, the gross amount received for the services was less than Rs. Four lakhs and they are eligible for the benefit of Small Scale Service providers, as per the Notification No. 6/2005-ST, for the first four lakhs rupees for the Financial Year April 2005 to March 2006. It is his submission that both the lower authorities should have given them the benefit, albeit he fairly submits that this point was not raised before the lower authorities.
4. Learned SDR submits that appellant has not raised this point before/the lower authorities in order to consider the issue from that perspective.
5. After careful consideration of the submissions made by both sides, I find that there being no dispute to the services rendered by the appellant under the category of Travel Agent Services, the benefit of notification which are there in the statute, should have been automatically be given to the assessee. Even in the absence of any such claim the benefit should have been granted to them. Be that as it may, the specific plea of the assessee that they are eligible for the benefit of Notification No. 6/2005-ST, cannot be disregarded for the services rendered up to the first four lakhs, during the period April 2005 to March 2006, for which the appellant is eligible for the benefit of notification, provided he has not crossed the limit of Rs. Four lakhs during the preceding Financial Year. Since the issue was not taken up by the appellant before the lower authorities, in the interest of justice, this issue needs to be considered by the adjudicating authority in its correct perspective. In view of this, without expressing any opinion on the merits of the case, I set-aside the impugned order and remand the matter back to the adjudicating, authority to reconsider the issue afresh after following the principles of natural justice.
6. Appeal is allowed by way of remand.
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