2009 (9) TMI 725 - AT - Service Tax

Summary

Issues:
1. Waiver of pre-deposit of service tax amounts.
2. Demand of service tax on 'Port Services' and 'Customs House Agent' (CHA) services.
3. Eligibility for benefit of Board's Circular No. B43/1/17-TRU.

Analysis:
1. The appellant filed a stay petition against the waiver of pre-deposit of specific amounts related to service tax and penalties. The demand arose from services provided as 'Port Services' and 'Customs House Agent' (CHA). The adjudicating authority confirmed the demand for 'Port Services' based on various charges related to port, cargo handling, railway haulage, container handling, and labor charges. Regarding the CHA service, it was held that the appellant, having a specific contract with commission indicated separately, was not eligible for the benefit of a Board circular. However, the appellant argued that a previous stay order by the same Bench favored complete waiver of pre-deposit for the disputed amounts.

2. The Judicial Member and Technical Member of the Bench considered the submissions and records. They observed that the issue of 'Port Services' was previously decided in favor of the appellant in a similar case and the appellant's own case where a waiver was granted. Thus, a prima facie case for waiver of the amount under 'Port Services' was established. For the CHA services, it was noted that the appellant received a specific amount per metric ton, out of which a portion was for agency commission. The Bench concluded that the appellant should have paid service tax only on the commission amount, not the entire service value. Consequently, a prima facie case for waiver of the differential duty confirmed by the adjudicating authority for CHA services was established.

3. Based on the findings, the Bench granted complete waiver of pre-deposit of the service tax amounts confirmed by the lower authority and stayed the recovery until the appeal's disposal. The stay petition was allowed. The decision was pronounced and dictated in court by the Bench.

This judgment addressed the issues of waiver of pre-deposit of service tax amounts, the demand for service tax on specific services, and the eligibility for the benefit of a Board circular, providing a detailed analysis of the arguments presented and the Bench's decision in each aspect.