2010 (6) TMI 580 - AT - Service Tax

Waiver of pre-deposit - Valuation (Service tax) - Whether freight charges included in the taxable value of services under the category of Clearing & Forwarding (C&F) Agent - The appellants had contended before Commissioner (Appeals) that the Tribunal in number of cases has held that the transportation charges do not form part of the value under C&F Agent - They also relied upon the Tribunal s decision in the case of E.V. Mathai & Co. v. CCE 2007 -TMI - 1542 - CESTAT BANGALORE - Accordingly set aside the impugned order and remand the matter to Commissioner (Appeals) for decision on merit by taking into account other relevant decisions and without insisting upon any pre-deposit.

Issues:
1. Dismissal of appeal due to non-compliance with stay order.
2. Tax liability on freight charges in the category of 'Clearing & Forwarding Agent'.
3. Justification of directing 50% deposit without considering relevant Tribunal decisions.
4. Remand of the matter to Commissioner (Appeals) for decision on merit without pre-deposit.

Issue 1: Dismissal of appeal due to non-compliance with stay order:
The Commissioner (Appeals) dismissed the appeal filed by the appellant on the grounds of non-compliance with the stay order, which directed the appellant to deposit 50% of the confirmed Service Tax. However, the Tribunal found that the direction to deposit 50% of the amount was not justified, considering the law declared by the Tribunal in similar matters and the fact that another Order-in-Appeal (OIA) had concluded in favor of the same assessee. Therefore, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a decision on merit without insisting on any pre-deposit.

Issue 2: Tax liability on freight charges in the category of 'Clearing & Forwarding Agent':
The appellant was confirmed a service tax liability of Rs. 7,75,076 along with penalties for receiving freight charges of Rs. 62,70,839, which were not included in the taxable value of services provided as a 'Clearing & Forwarding Agent'. The appellants argued that transportation charges do not form part of the value under this category, citing Tribunal decisions in similar cases and a previous order by the Commissioner (Appeals) that extended benefit to them. The Tribunal noted that the Commissioner (Appeals) did not appreciate the appellant's plea and the relevant Tribunal decisions. Therefore, the matter was remanded for a decision on merit, considering other relevant decisions without insisting on any pre-deposit.

Issue 3: Justification of directing 50% deposit without considering relevant Tribunal decisions:
The Tribunal found that the Commissioner (Appeals) had directed the appellant to deposit 50% of the duty without appreciating their plea and without taking into account the law declared by the Tribunal in similar matters. Given that another OIA had concluded in favor of the same assessee, the Tribunal deemed the direction to deposit 50% of the amount unjustified. Consequently, the impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) for a decision on merit, considering other relevant decisions and without requiring any pre-deposit.

Issue 4: Remand of the matter to Commissioner (Appeals) for decision on merit without pre-deposit:
The Tribunal disposed of the stay petition and appeal in the above manner, setting aside the order that directed the appellant to deposit 50% of the confirmed Service Tax. The matter was remanded to the Commissioner (Appeals) for a decision on merit, taking into account relevant Tribunal decisions and without insisting on any pre-deposit requirement.

This detailed analysis of the judgment highlights the key issues involved and the Tribunal's decision on each matter, ensuring a comprehensive understanding of the legal complexities addressed in the case.

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