2011 (4) TMI 1151 - AT - Service Tax

Waiver of pre-deposit - clearing and forwarding agent s service - Commissioner (Appeals) directed the Applicant to deposit a sum of Rs. 18,97,064.00 for hearing of the appeal before him. As the Applicant failed to comply with the condition of the Stay Order, the Appeal filed by the Applicant was dismissed for non-compliance under the provisions of Section 129E of the Customs Act, 1962 - Held that - Commissioner (Appeals) has not gone into the merits of the appeal as the appeal was dismissed for non-compliance to the condition of the Stay Order passed by him. Hence, the impugned Order is set aside and the matter is remanded to the Commissioner (Appeals) to decide the Appeal on merits without asking for any pre-deposit

Summary

Issues: Application for waiver of pre-deposit of Service Tax and penalties; Determination of whether the Applicant is providing clearing and forwarding agent's service.

Analysis:
1. The Applicant filed an application seeking the waiver of pre-deposit of Service Tax amounting to Rs. 18,97,064.00 and penalties. The demand was based on the contention that the Applicant was providing clearing and forwarding agent's service.

2. The Applicant appealed to the Commissioner (Appeals) against the Adjudication Order and requested a waiver of pre-deposit. However, the Commissioner (Appeals) directed the Applicant to deposit the sum for the appeal hearing. Due to the Applicant's failure to comply, the appeal was dismissed under the provisions of Section 129E of the Customs Act, 1962.

3. The Applicant argued that their activities involved liaisoning between railways and colliery authorities for coal procurement and movement supervision, among other tasks. They contended that as per a Board's Circular, a clearing and forwarding agent typically engages in specific activities like receiving goods, warehousing, dispatching, and preparing invoices, which the Applicant was not doing.

4. The contention was supported by the fact that the Applicant did not engage in receiving goods, warehousing, or preparing invoices on behalf of the principal, as typically done by clearing and forwarding agents. Consequently, the Applicant was deemed not to be providing clearing and forwarding agent's service.

5. The Tribunal noted that the Commissioner (Appeals) did not address the merits of the appeal but dismissed it due to non-compliance with the Stay Order condition. Therefore, the Tribunal set aside the impugned Order and remanded the matter to the Commissioner (Appeals) for a decision on the appeal's merits without requiring any pre-deposit, allowing the Stay Petition.

In conclusion, the Tribunal found that the Applicant did not fall under the category of a clearing and forwarding agent based on the specific activities they were engaged in, as outlined in the Board's Circular. The Tribunal directed a reevaluation of the appeal by the Commissioner (Appeals) without the need for pre-deposit, emphasizing the importance of considering the merits of the case.