2013 (11) TMI 717 - AT - Service Tax

Waiver of pre deposit - Cable operator service - Held that - Facts of the case are disputed - Hence Assessee is directed to make a pre deposit - Decided against assessee.

Summary

Issues:
- Waiver of service tax along with interest and penalty
- Non-payment of service tax by the applicant during a specific period
- Show-cause notice issued based on documents obtained from Head End Operator
- Confirmation of demand of tax, interest, and penalty by the original authority
- Additional demand of tax confirmed by the Commissioner
- Applicant's contention regarding lack of opportunity to examine third party documents
- Direction to deposit a further amount towards service tax

Waiver of Service Tax, Interest, and Penalty:
The applicant filed for waiver of service tax amounting to Rs.3,44,248/- along with interest and penalty. The original authority confirmed a demand of tax of Rs.25,572/- and appropriated the amount already paid by the applicant along with interest. Subsequently, the Commissioner confirmed an additional demand of tax of Rs.3,44,248/- along with interest and penalty. However, considering the financial position of the applicant as a proprietorship firm and a small cable operator, the Tribunal directed the applicant to deposit a further amount of Rs.50,000/- towards service tax within a specified period. Upon compliance with this directive, the pre-deposit of the balance dues was waived, and recovery thereof stayed during the pendency of the appeal.

Non-Payment of Service Tax and Show-Cause Notice:
It was found during an investigation that the applicant, engaged in cable operator service, had not paid the service tax for the period from August 2002 to December 2005. A show-cause notice was issued based on documents obtained from the Head End Operator, Shri V. Vijay Kumar. The original authority confirmed the initial demand of tax and appropriated the amount already paid along with interest. The Commissioner, through the impugned order, confirmed an additional demand of tax, interest, and penalty.

Applicant's Contention and Opportunity to Examine Documents:
The applicant contended that the demand was confirmed based on third-party documents, and he was not given an opportunity to examine those documents or allowed for cross-examination. The Revenue proceeded with the case relying on documents available from the head end operator, as the applicant did not maintain any records. The Tribunal acknowledged the existence of disputed facts, which would be addressed during the appeal hearing. However, in light of the applicant's financial circumstances as a small cable operator, a directive was issued for a specific deposit towards service tax, with the pre-deposit of the balance dues being waived and recovery stayed during the appeal process.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT CHENNAI highlights the issues surrounding the waiver of service tax, non-payment of tax, the basis of the show-cause notice, confirmation of tax demands, the applicant's contention regarding document examination, and the directive for a further deposit towards service tax.