2010 (9) TMI 353 - AT - Service Tax

Waiver of pre-deposit valuation - inclusion of reimbursable expenses in the assessable value - assessees submitted that a partnership firm was dissolved and therefore, notice should have been issued to all the partners of the partnership firm and the demand cannot be recovered from only one firm of partner - Commissioner recorded that the firm was dissolved and the assets and liabilities of the firm were taken over assessee, under sole proprietorship - the assessee has not made out a case for total waiver of pre-deposit

Summary

Issues: Application for waiver of pre-deposit of Service Tax and penalty due to inclusion of reimbursable expenses in assessable value.

Analysis:
1. The first issue raised was regarding the dissolution of a partnership firm, M/s Jerry & Co., and the subsequent liability of partners. The Commissioner noted that the firm was dissolved, and assets and liabilities were taken over by A. Joseph Vincent under sole proprietorship. The argument that notice should have been issued to all partners does not hold as per the Commissioner's findings. The Tribunal did not find merit in this argument.

2. The second issue pertained to the nature of expenses incurred and their eligibility for exclusion from the assessable value. The Counsel argued that certain expenses like sales promotion activities and liaison infrastructure should be considered as out of pocket expenses. However, the Tribunal opined that these expenses were essential and integral parts of the service provided, thus not qualifying for exclusion.

3. After considering the arguments and circumstances, the Tribunal held that the assessee did not establish a case for total waiver of pre-deposit. Consequently, the Tribunal directed the assessee to deposit Rs. 1,00,000 within four weeks. Upon this deposit, the pre-deposit of the remaining amount of Service Tax and penalty would be waived, and recovery stayed pending the appeal. Non-compliance would lead to vacation of stay and dismissal of the appeal without prior notice.

4. The Tribunal set a deadline for compliance and required reporting by a specified date to ensure adherence to the directive. The judgment was dictated and pronounced in open court, outlining the decision and the conditions for compliance and appeal process.