2011 (9) TMI 113 - HC - Service Tax

Waiver of pre-deposit - The Central Board of Excise and Customs has in its circular dated 18 December 2006, clarified that it is of the view that activities performed by sovereign/public authorities under the provisions of law are in the nature of statutory obligations which are to be fulfilled in accordance with law. The fee collected by them is for performing such activities and is deposited in the Government Treasury - Such activity is purely in public interest and it is undertaken as a mandatory and statutory function, and is not in the nature of a service provided to any particular individual for consideration - In these circumstances, the Tribunal was not justified in imposing a requirement of deposit of an amount of ₹ 4,88,48,874/- The Appellant is a statutory body - But apart from that, the question as to whether the Appellant carries on the business of rendering services relating to the security of any property including the business of providing security personnel is a serious triable question - Consequently an order for pre-deposit was not warranted in the circumstances of the case.

Summary

Issues:
1. Conversion of Petition under Article 226 into an Appeal.
2. Application for waiver of pre-deposit and stay of recovery in respect of service tax demand.
3. Interpretation of the definition of "Security Agency" under the Finance Act, 1994.
4. Consideration of whether the Appellant, a statutory Board, falls within the definition of "Security Agency."
5. Justification of rejecting the application for complete waiver of pre-deposit.

Issue 1: Conversion of Petition under Article 226 into an Appeal

The High Court granted leave to convert the Petition under Article 226 of the Constitution of India into an Appeal at the request of the Petitioner. The necessary formal amendment was to be carried out within a week, and the Registry was directed to number the Petition as a Central Excise Appeal.

Issue 2: Application for Waiver of Pre-deposit and Stay of Recovery

The appeal arose from an order by the CESTAT regarding an application for waiver of pre-deposit and stay of recovery concerning a service tax demand of Rs. 12,90,54,553/-. The Tribunal directed the Appellant to deposit 50% of Rs. 9,76,97,740/- under relevant sections of the Central Excise Act and the Finance Act, 1994.

Issue 3: Interpretation of the Definition of "Security Agency"

The definition of "Security Agency" under the Finance Act, 1994 was amended in 2006, changing the term "commercial concern" to "any person." Prior to the amendment, the Appellant was called upon to pay service tax for a specific period. The Appellant argued that it did not engage in any business but fulfilled a statutory function, citing a circular by the Central Board of Excise and Customs regarding activities of sovereign/public authorities not attracting service tax.

Issue 4: Determining Appellant's Status as a Security Agency

The Appellant, a statutory Board, contended that it did not engage in a business but carried out statutory duties. The Tribunal held prima facie that the Appellant fell within the definition of "Security Agency" and directed a deposit. The High Court found that the Appellant's activities were in the nature of statutory obligations and not commercial services, thus allowing the appeal and granting an absolute waiver of pre-deposit.

Issue 5: Justification for Rejecting Complete Waiver of Pre-deposit

The Appellant argued for a complete waiver of pre-deposit based on being a statutory Board and not engaging in business activities. The Respondent maintained that the Tribunal's decision was justified. The High Court clarified that the appeal was against the order on pre-deposit waiver only, allowing the appeal and granting an absolute waiver while leaving the determination of the Appellant's status as a Security Agency to the Tribunal.

In conclusion, the High Court allowed the appeal, setting aside the Tribunal's order on the deposit amount. The Appellant was granted an absolute waiver of pre-deposit, subject to certain conditions, while leaving the final decision on the Appellant's classification as a Security Agency to be determined by the Tribunal independently. The judgment focused on the application for waiver of pre-deposit, with no costs awarded.