2010 (11) TMI 370 - AT - Service Tax

Demand - Barred by limitation - Poor farmers who are unable to afford cost of transport for bringing their sugarcane to factory were accommodated by the appellant discharging the transport cost at the initial stage - testing of evidence as to who availed transport service - Accordingly the order passed on 31-8-09 is recalled Co-operative Society may undergo hardship which takes care of farmers - Appellant is directed to make pre-deposit of Rs. 2 lakhs within eight weeks and the balance amount of demand shall be waived during pendency of appeal

Issues:
1. Restoration of Stay Application and hearing the appellant.
2. Taxability of transport cost recovered by the appellant.
3. Barred by limitation.
4. Testing evidence on who availed transport service.
5. Pre-deposit amount and waiver of balance demand during appeal.

Analysis:

1. Restoration of Stay Application and hearing the appellant:
The appellant, a co-operative society, through its representative, sought restoration of the Stay Application and an opportunity for a hearing due to a communication gap that led to the dismissal of the stay application earlier. The representative argued that the appellant had accommodated poor farmers by covering the cost of transporting sugarcane to the factory, which was later recovered from payments to the farmers. The appellant contended that the imposition of service tax on the transport charge, considered as taxable value by the Revenue, was unjust as the appellant did not actually avail any transport service. The Tribunal, after hearing both sides, acknowledged the need for a reevaluation of the evidence regarding the transport service availed, which was not thoroughly considered during the previous hearing. Consequently, the order dismissing the stay application was recalled, and the miscellaneous application was disposed of.

2. Taxability of transport cost recovered by the appellant:
The appellant's argument centered on the imposition of service tax on the amount recovered from farmers for transport costs, despite not utilizing any transport service themselves. The Tribunal recognized the complexity of the issue and the necessity to delve deeper into the evidence to ascertain who actually availed the transport service. The appellant's contention that the recovery of transport costs should not be subject to service tax was a pivotal aspect of the case, prompting the Tribunal to reconsider its previous decision and recall the order to allow for a more thorough examination of the matter.

3. Barred by limitation:
The appellant raised the issue of the case being barred by limitation, indicating a time constraint within which the matter should have been resolved. However, the primary focus of the Tribunal's decision was on the substantive aspects related to the restoration of the Stay Application and the taxability of the transport costs, rather than solely on the limitation aspect.

4. Testing evidence on who availed transport service:
The Tribunal recognized the need to test the evidence concerning the actual utilization of the transport service, a critical factor in determining the applicability of service tax on the recovered transport costs. This reevaluation highlighted the importance of thoroughly examining the factual circumstances surrounding the transport service to ensure a just and accurate decision regarding the tax liability.

5. Pre-deposit amount and waiver of balance demand during appeal:
Acknowledging the potential hardship faced by a Co-operative Society supporting farmers, the Tribunal directed the appellant to make a pre-deposit of Rs. 2.00 Lakhs within a specified timeline. Upon compliance with this directive, the Tribunal granted a waiver of the balance amount of the demand during the pendency of the appeal, providing some relief to the appellant while the case proceeded further.

In conclusion, the judgment addressed the multifaceted issues raised by the appellant, emphasizing the need for a comprehensive examination of the evidence related to the taxability of transport costs and ensuring a fair opportunity for the appellant to present their case. The Tribunal's decision to recall the previous order and allow for a more thorough review of the matter demonstrated a commitment to upholding principles of justice and equity in resolving the legal dispute at hand.

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