2011 (4) TMI 1153 - AT - Service Tax

Waiver of pre-deposit - clearing and forwarding service Held that - Applicant is neither warehousing the goods, nor dispatching the same on the instruction the principal, nor issuing any invoice on behalf of the principal, merit in the Application. Therefore, predeposit of the Service tax, interest and penalties is waived and recovery of the same stayed during pendency of the Appeal, Stay Petition is allowed

Summary

Issues:
Application for waiver of pre-deposit of Service Tax and penalties.

Analysis:
The Applicant filed an Application seeking waiver of pre-deposit of Service Tax amounting to Rs. 1,07,41,754.00 and penalties for the period from September 1999 to March 2004, contending that they provided services like discharging coal cargo, stevedoring, Customs clearance, intraport transportation, and arranging wagons. The Applicant argued that these activities did not fall under the purview of a clearing and forwarding agent's service, citing a Board's Circular and a Trade Notice. They also highlighted that they had been paying Service Tax as a provider of business auxiliary service since September 10, 2004, which was accepted by the Revenue.

The Revenue contended that activities similar to those of the Applicant were considered as falling under the scope of a clearing and forwarding agent's service, referencing a Tribunal decision in the case of Coal Handlers Pvt. Ltd. The Applicant countered this by pointing out that the Tribunal's decision in the Coal Handlers case was based on a previous ruling that had been overruled by a Larger Bench in the case of Larsen & Toubro. The Applicant argued that the rationale of the Coal Handlers decision was no longer applicable to their case due to the subsequent overruling.

Upon examination, the Tribunal found merit in the Applicant's contentions. They noted that the Revenue heavily relied on the Coal Handlers case, which had been overruled by a Larger Bench in the Larsen & Toubro case. Additionally, the Tribunal referred to the Board's Circular from 1997 outlining the activities typically undertaken by a clearing and forwarding agent, which the Applicant did not entirely fulfill. As a result, the Tribunal granted the waiver of pre-deposit of Service Tax, interest, and penalties, and stayed the recovery during the pendency of the Appeal, thereby allowing the Stay Petition.