2013 (11) TMI 1008 - HC - Service Tax

Waiver of pre-deposit - Commissioner (Appeals) directed the appellant to deposit full amount of demand - cleaning services of residential complex - held that - After going through the contents of the agreement and definition of the cleaning activities as given in Clause (24b) of Section 65 of the Finance Act, 1994, there may be prima facie force in the submission of the learned counsel for the petitioner that the cleaning activities may not include the activities undertaken by the petitioner when it is for the residential complex or colony and the plea of the petitioner that the work awarded to the petitioner of the nature mentioned even in the order passed by the original authority may not fall in the category of maintenance . There is also prima facie, force in the submission of the learned counsel for the Revenue that there are overlapping works, hence, some of the works have been clearly mentioned in the agreement to be the work of maintenance. The writ petition of the petitioner is partly allowed - The application of the writ petitioner is allowed to the extent that the writ petitioner may now deposit 50% of the confirmed demand before the appellate authority within a period of one month from today - decided partly in favor of assessee.

Issues Involved:
1. Exemption from pre-deposit condition under Section 35F of the Central Excise Act, 1944 and Section 83 of the Finance Act, 1994.
2. Nature of the contract - whether it is for "cleaning services" or "maintenance services".
3. Consideration of undue hardship for the petitioner.
4. Prima facie case for the petitioner.
5. Precedent and applicability of interim relief as per previous judgments.

Issue-wise Detailed Analysis:

1. Exemption from Pre-deposit Condition:
The petitioner sought exemption from the pre-deposit condition under Section 35F of the Central Excise Act, 1944, and Section 83 of the Finance Act, 1994, to maintain his appeal. Initially, the Commissioner (Appeals), Central Excise and Service Tax, Ranchi, allowed the petitioner to deposit 50% of the confirmed demand without a hearing. This decision was set aside by the High Court, directing a fresh order after a hearing. Upon rehearing, the Commissioner directed the petitioner to deposit the full demand amount, which led to the petitioner's grievance.

2. Nature of the Contract:
The petitioner argued that the contracts in question were for cleaning services, not maintenance services. The contracts were similar, with one treated as a cleaning service for an industrial unit and the other for a residential colony. The petitioner contended that the residential colony contract should not fall under "Management, Maintenance or Repair Service" as defined in Clause (24b) of Section 65 of the Finance Act, 1994. The Revenue, however, interpreted the contract as a maintenance service, thus falling within the taxable category.

3. Consideration of Undue Hardship:
The petitioner cited undue hardship if required to pay the full pre-deposit, referencing the Supreme Court's decision in Benara Valves Ltd. v. Commissioner of Central Excise, which elaborates on undue hardship in interim orders. The petitioner argued that the same authority had previously considered undue hardship and directed a 50% deposit, which should be maintained.

4. Prima Facie Case:
The court found a prima facie case in favor of the petitioner. The appellate authority, instead of assessing the prima facie merit for exemption from pre-deposit, delved into detailed findings as though deciding the appeal itself. The court noted that the nature of the contract required careful consideration to determine whether it was for maintenance or cleaning services.

5. Precedent and Applicability of Interim Relief:
The petitioner sought relief similar to that granted in the case of The Tinplate Company of India Ltd., where the court suspended the pre-deposit condition due to litigation delay. However, the court clarified that such relief cannot be a precedent for all cases, as it would render Section 35F redundant. The court emphasized that decisions on priority should be left to the discretion of lower courts and appellate authorities.

Conclusion:
The writ petition was partly allowed. The impugned order dated 11-4-2012 was set aside, and the petitioner was directed to deposit 50% of the confirmed demand within one month. The court made it clear that the observations should not be treated as findings on the merits of the case.

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