2011 (5) TMI 550 - AT - Service Tax

Waiver of pre-deposit - Service Tax liability prior to 10.09.2004 on the appellant under the category of Tour Operator Services - Held that - As seen from the records that the appellant has been taking a consistent plea before the lower authorities that they are operating as a booking agent for outstation travel agents. Both the lower authorities have not given any proper reasoning for dismissing such pleas raised by the appellants. Be that as it may, post 10.09.2004, the appellant s liability prima facie needs to be considered from various angles. For this purpose, the amount deposited by the appellant during the investigation i.e. 9,29,565/- is enough amount to hear and dispose off the appeal. The application for waiver of pre-deposit of the balance amounts is allowed and recovery thereof stayed till the disposal of the appeal.

Summary

Issues:
1. Stay petition for waiver of pre-deposit of Service Tax and penalties.
2. Confirmation of Service Tax demand by lower authorities.
3. Appellant's contention regarding liability for providing services to outstation travel agents.
4. Lack of evidence produced by the appellant to support their claim.
5. Tribunal's consideration of Service Tax liability pre and post 10.09.2004.

Analysis:

1. The appellant filed a stay petition seeking the waiver of pre-deposit of Service Tax amounting to Rs.36,82,842/- along with applicable interest, and penalties totaling Rs.73,65,000/-. The Tribunal heard both sides and reviewed the records to make a decision.

2. The Service Tax demand was confirmed by the adjudicating authority, including interest and penalties, due to the appellant's failure to discharge their Service Tax liability for services rendered. The Commissioner (Appeals) upheld the findings of the adjudicating authority, leading to the appeal before the Tribunal.

3. The appellant argued that the demand was related to the liability arising from providing services to outstation travel agents. They claimed that the amount in question was permitted to be deducted from the aggregate value as per a specific notification. The appellant contended that they had already deposited a partial amount during the investigation and were contesting the Service Tax liability based on a previous judgment.

4. The JCDR contended that the appellant failed to provide evidence to support their claim that the amount subject to Service Tax liability was actual expenses reimbursed to them. Without such evidence, the appellant's position was deemed unjustified.

5. The Tribunal considered the appellant's liability for Service Tax pre and post 10.09.2004. While acknowledging the appellant's consistent plea of operating as a booking agent for outstation travel agents, the lower authorities did not provide sufficient reasoning for dismissing this claim. The Tribunal found that post 10.09.2004, further examination of the appellant's liability was necessary. Considering the amount already deposited by the appellant during the investigation, the Tribunal allowed the waiver of pre-deposit for the balance amounts, staying the recovery until the appeal's disposal.