2010 (9) TMI 349 - AT - Service Tax

Waiver of pre-deposit GTA service - Abatement of service tax was denied in absence of any proof that the Good Transport Agency had not availed the credit of duty paid on inputs for providing taxable service and also there was no proof whether benefit under notification No. 12/2003-ST dated20th June 2003availed - appellants submitted that the appellants had not received service from Goods Transport Agency when the canes were transported by different local persons transporting sugar cans of agriculturists Held that - nothing coming out from the adjudication order to demonstrate that goods for and on behalf of the appellants were transported by Goods Transport Agency - In absence of any description on the identity of the service provider brought to record for examination the case does not warrant at the interim stage to call for pre-deposit pre-deposit waived

Summary

Issues:
1. Stay application against demand arising from rejection of appeal by Commissioner (Appeals) for service tax.
2. Allegation of not paying service tax on Goods Transport Service for transportation of cane.
3. Denial of abatement of service tax.
4. Challenge to appellate authority's decision.
5. Determination of liability for service tax on transportation of goods.
6. Consideration of waiver of pre-deposit during appeal.

Analysis:
1. The case involved a stay application against a demand arising from the rejection of the appellants' appeal by the Commissioner (Appeals) regarding service tax. The demand included service tax, penalties under Sections 78 and 76 of the Finance Act, 1994, and interest. The issue stemmed from the alleged non-payment of service tax on Goods Transport Service for the transportation of cane from various industries, resulting in a determined value of taxable service and service tax amount. The Adjudicating Authority found the appellants liable for service tax due to the absence of consignment notes as required by Rule 4B of the Service Tax Rules.

2. The appellants challenged the appellate authority's decision, arguing that they did not receive services from a Goods Transport Agency as the canes were transported by local individuals, not falling under the definition of Goods Transport Agency. They cited a Tribunal decision and requested a waiver of the service tax realization during the appeal, citing undue hardship.

3. The Departmental Representative objected to the appellants' argument, contending that the transportation was done for and on behalf of the appellants, constituting an availment of Goods Transport Agency service, thus justifying a pre-deposit requirement.

4. Upon hearing both sides and examining the records, the Tribunal found no evidence in the adjudication order to establish that the goods were transported by a Goods Transport Agency for and on behalf of the appellants. Due to the lack of information regarding the service provider's identity, the Tribunal waived the pre-deposit requirement during the appeal, as it was not warranted at the interim stage.

5. The judgment focused on determining the liability for service tax concerning the transportation of goods, emphasizing the necessity of establishing the involvement of a Goods Transport Agency to warrant the imposition of service tax. The decision highlighted the importance of providing evidence and descriptions to support claims of service tax liability.

6. In considering the waiver of pre-deposit during the appeal, the Tribunal prioritized the lack of prima facie evidence regarding the transportation services and the absence of details regarding the service provider, leading to the decision to waive the pre-deposit requirement for the appellants during the appeal process.