9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (5) TMI 112 - HC - Service TaxBusiness Auxiliary Service - assessee registered as multi-modal transport operators engaged in making arrangements for export of goods and as a registered service tax Assessee - appeal against pre-deposit order passed by the CESTAT - Held that - When the question whether Assessee s services are classifiable under Business Auxiliary Service has to be adjudicated upon by the Tribunal, there cannot be a full waiver. In the facts and circumstances of the case, Assessee could be directed to deposit ₹ 20 lakhs instead of ₹ 30 lakhs as ordered by the CESTAT, so that the appeal shall be taken up for hearing on merits without further delay by the CESTAT. Accordingly, the order of CESTAT is modified and Assessee is directed to make pre-deposit of ₹ 20 lakhs within a period of four weeks from today. The Civil Miscellaneous Appeal is disposed of accordingly.
Issues Involved:
1. Classification of services under Business Auxiliary Service. 2. Liability of service tax on extra charges collected. 3. Requirement of pre-deposit for appeal under Section 35F of Central Excise Act. 4. Consideration of undue hardship and safeguarding Revenue interests. 5. Consistency in Tribunal's decisions on similar cases. Issue-wise Detailed Analysis: 1. Classification of Services under Business Auxiliary Service: The Assessee, engaged in providing Custom House Agent Service, Business Auxiliary Service, and Business Support Service, was directed by the Commissioner of Central Excise to pay service tax on extra charges collected over ocean freight. The services were classified under 'Business Auxiliary Service' as per Section 65(19)(iv) read with Section 65(105)(zzb) of the Finance Act. The Assessee contested this classification, arguing that their activities did not involve procuring goods or services as inputs for clients but were merely transportation arrangements. 2. Liability of Service Tax on Extra Charges Collected: The Revenue argued that the extra charges collected by the Assessee over and above the ocean freight constituted consideration for services rendered, thus falling under the taxable category of Business Auxiliary Service. The Assessee contended that these extra charges were profits from transportation services and not subject to service tax. The Tribunal needed to adjudicate whether these extra charges should be included in the taxable value. 3. Requirement of Pre-deposit for Appeal under Section 35F of Central Excise Act: The Assessee was directed by CESTAT to make a pre-deposit of Rs. 30 lakhs out of the total service tax demand of Rs. 1,38,23,529/- and an equal amount as a penalty. The Assessee appealed against this pre-deposit order, arguing that the demand would not stand on appeal and that the pre-deposit requirement was unduly burdensome. 4. Consideration of Undue Hardship and Safeguarding Revenue Interests: Section 35F of the Central Excise Act mandates pre-deposit of the duty demanded or penalty levied unless it causes undue hardship. The Tribunal must balance undue hardship to the appellant and safeguarding Revenue interests. The Supreme Court's interpretation of "undue hardship" in MONOTOSH SAHA and S. VASUDEVA cases emphasized economic hardship and the proportionality of the burden. 5. Consistency in Tribunal's Decisions on Similar Cases: The Assessee cited previous Tribunal decisions where pre-deposit was waived for similar cases involving ocean freight not being subject to service tax. However, the Tribunal distinguished these cases on facts, noting that in the present case, the Assessee collected excess amounts over the actual ocean freight, potentially making it taxable under Business Auxiliary Services. Conclusion: The High Court modified the CESTAT's order, reducing the pre-deposit amount from Rs. 30 lakhs to Rs. 20 lakhs, considering the Assessee's arguments and the need for a fair hearing on merits. The Assessee was directed to deposit Rs. 20 lakhs within four weeks to proceed with the appeal. The Court emphasized the balance between undue hardship and safeguarding Revenue interests, aligning with legal precedents on pre-deposit requirements.
|
