2009 (1) TMI 749 - AT - Service Tax

Summary

Issues:
- Stay application for waiver of pre-deposit of service tax, penalty, and interest amounts.
- Confirmation of demand of service tax based on alleged incorrect filing of ST 3 returns and suppression of service value.
- Argument regarding reimbursable expenses received from principals.
- Prima facie case for waiver of pre-deposit based on Tribunal decisions.

Analysis:
The judgment pertains to a stay application seeking a waiver of pre-deposit of service tax, penalty, and interest amounts. The demand of service tax was confirmed due to alleged incorrect filing of ST 3 returns and suppression of service value. The applicant argued that the service tax sought to be confirmed was on reimbursable expenses received from principals. Reference was made to show cause notice and relevant case laws to support this argument.

The JCDR contended that the applicant failed to provide details of expenses paid and did not correlate the amounts received from principals. It was asserted that the applicant did not furnish proof regarding reimbursable expenses, which were claimed to be in the form of a percentage of commission. Upon reviewing the records, the Tribunal observed that the show cause notice focused on expenses not shown by the applicant and received from principals, deeming them as non-reimbursable expenses such as service handling charges, rent, freight, and establishment charges.

After careful consideration, the Tribunal found that the applicant had established a prima facie case for the waiver of the pre-deposit amounts. It was noted that the issue might be covered by previous Tribunal decisions, including those in the cases of S & K Enterprises and Pampa Agencies. Consequently, the Tribunal allowed the stay petition for the waiver of pre-deposits and stayed the recovery until the appeal's disposal. The stay order was specified to remain in force even after 180 days, citing a relevant Supreme Court decision.

In conclusion, the judgment granted the applicant's request for a waiver of pre-deposit based on the prima facie case presented, referencing relevant case laws and holding that the expenses in question could be considered reimbursable.