2011 (1) TMI 536 - AT - Service Tax

Waiver of predeposit -Demand and penalty imposed - Business auxiliary services - The activities of promoting the business on commission basis amounting to business auxiliary services - The service tax on activities undertaken by them under the category of clearing and forwarding agent for the period April, 2001 to March, 2003 - The said show cause notice proposing to confirm the demand of Rs. 16,83,603/- was dropped by the Additional Commissioner vide his order dated 22-3-07 - The appellants activity continued to remain the same - The Revenue was fully aware of the activities - There is no evidence reflecting upon any positive act of suppression or mis statement with intent to evade payment of duty by the appellant - Find that the demand stands raised against them by taking out the figures from the appellants ledger of accounts and balance sheet for the relevant year - Balance sheet is a public document and available to all concerned - Reflection of the income and the said activity in the ledger account and the balance sheet will reflect upon the absence of any wilful suppression or mis-statement on the part of the appellant so as to invoke longer period of limitation - Hence, allow the stay petition unconditionally.

Summary

Issues:
- Dispensing with the condition of pre-deposit of duty amount and penalty
- Imposition of penalties under Sections 76 & 78 of the Finance Act
- Consideration of limitation for stay purposes
- Activities falling under business auxiliary services category
- Lack of evidence of suppression or misstatement to evade payment of duty

Dispensing with pre-deposit and penalty:
The application sought to dispense with the pre-deposit of duty amount and penalty of an identical sum imposed under Sections 76 and 78 of the Finance Act, 1994. The issue arose due to the activities of promoting another business on a commission basis being classified as business auxiliary services introduced from 1-7-2003. The Tribunal considered the appellant's submissions and the history of show cause notices. A previous notice from 2005 regarding different activities was dropped, and the current demand was based on ledger and balance sheet figures. The Tribunal found no evidence of wilful suppression or misstatement to evade duty, allowing the stay petition unconditionally.

Imposition of penalties under Sections 76 & 78:
Penalties were imposed under Sections 76 and 78 of the Finance Act. The Tribunal considered the appellant's argument that their activities remained consistent and known to the Revenue. Despite the introduction of a new service category in 2003, the Revenue did not advise on tax payment or take action within the normal limitation period. The Tribunal agreed with the appellant, noting the absence of evidence of suppression or misstatement. The demand was based on publicly available balance sheet information, indicating no intentional evasion. Consequently, the Tribunal allowed the stay petition without conditions.

Consideration of limitation for stay purposes:
The Tribunal reviewed the limitation aspect for granting a stay. The show cause notice for the period 1-7-2003 to 31-3-2005 was issued invoking the longer limitation period. The appellant highlighted a previous notice from 2005 that was dropped, which the Revenue did not appeal. The Tribunal observed that the demand was based on ledger and balance sheet details, indicating no deliberate evasion. Considering these factors, the Tribunal granted the stay petition unconditionally.

Activities falling under business auxiliary services category:
The issue involved determining if the appellant's activities fell under the business auxiliary services category introduced in 2003. The appellant argued that their activities remained consistent and known to the Revenue. Despite the new service category, the Revenue did not advise on tax payment or take timely action. The Tribunal agreed with the appellant, finding no evidence of intentional evasion based on the publicly available balance sheet information. Consequently, the Tribunal allowed the stay petition without conditions.

Lack of evidence of suppression or misstatement:
The central issue revolved around the absence of evidence showing wilful suppression or misstatement by the appellant to evade duty payment. The Tribunal noted that the demand was based on ledger and balance sheet information, which did not indicate deliberate evasion. The Tribunal found no positive act of suppression or misstatement by the appellant, leading to the decision to unconditionally allow the stay petition.