2012 (12) TMI 275 - AT - Service Tax

Waiver of pre-deposit of Service Tax, interest & penalty - Whether giving bullock-carts on consideration amounts to supply of tangible goods service Held that - As per the definition of tangible goods service it includes machinery, equipment and appliances. Bullock-carts prima facie cannot be considered as machinery, equipment or appliances. In view of this, the applicants have made out a case for total waiver for hearing of the appeal. Stay petition allowed. Commissioner (Appeals) has not decided the appeal on merits. Therefore, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide afresh on merits after affording an opportunity of hearing to the appellant.

Summary

Issues:
1. Application for waiver of pre-deposit of Service Tax
2. Interpretation of the definition of taxable service under Section 65 of the Finance Act, 1994
3. Whether giving bullock-carts on consideration amounts to supply of tangible goods service

Analysis:
1. The appellant filed an application for waiver of pre-deposit of Service Tax, interest, and penalty. The adjudicating authority confirmed the demand under the category of supply of tangible goods. The Commissioner (Appeals) directed the appellant to deposit a certain amount for the hearing of the appeal. However, as the appellant did not comply with the stay order condition, the appeal was dismissed for non-compliance of the provisions of Section 35F of the Central Excise Act, 1944.

2. The applicant contended that as per Section 65 of the Finance Act, 1994, taxable service includes services provided in relation to the supply of tangible goods. The appellant argued that they are engaged in the manufacture of sugar and molasses and only supplied bullock-carts to a Seva Sangh for transporting sugarcane to the factory. The appellant claimed that bullock-carts cannot be considered machinery, equipment, or appliances, and therefore, they are not liable to pay service tax under the supply of tangible goods service.

3. The Revenue argued that since the appellant had given the bullock-carts on hire, they are covered by the taxable service. The issue revolved around whether giving bullock-carts on consideration amounts to the supply of tangible goods service. The definition of tangible goods service includes machinery, equipment, and appliances. However, bullock-carts may not fall under these categories. The Tribunal found that the appellant had made a case for a total waiver for the hearing of the appeal.

4. The Tribunal allowed the stay petition and set aside the Commissioner (Appeals) order as it was not decided on merits. The matter was remanded to the Commissioner (Appeals) to decide afresh on merits after giving an opportunity of hearing to the appellant. The appeal was allowed by way of remand.