2013 (12) TMI 619 - AT - Service Tax

Waiver of pre deposit - Demand of service tax - Non inclusion of amount received in hire charges for vehicle - From 16-5-2008, the statute has provided for services under supply of tangible goods wherein this kind of activity of hiring of vehicle mounted diesel generating sets would fall - Held that - activity which has been into Service Tax net w.e.f. 16-5-2008, cannot be considered as an activity which will fall under some other heading prior to 16-5-2008. This is the ratio which has been settled by the Tribunal in various decisions like in the case of Board of Control for Cricket in India - 2007 (5) TMI 24 - CESTAT, MUMBAI , and also the judgment of Hon ble High Court of Mumbai in the case of Indian National Shipowners Association - 2009 (3) TMI 29 - BOMBAY HIGH COURT - Stay granted.

Summary

Issues:
Waiver of pre-deposit of Service Tax, interest, and penalty under Sections 77 and 78 of the Finance Act, 1994.

Analysis:
The appellant filed a stay petition seeking waiver of pre-deposit of Service Tax, interest, and penalty amounting to Rs. 25,00,092/-, and Rs. 5,000/- respectively. The adjudicating authority and the first appellate authority confirmed these amounts due to the appellant's failure to include hire charges for vehicle mounted diesel generating sets despite being registered as a Pandal & Shamiyana service provider.

Upon hearing both parties and examining the records, it was noted that the appellant obtained Service Tax registration from 16-5-2008 onwards and was complying with the Service Tax liability under the supply of tangible goods category. The issue at hand pertained to activities conducted prior to 16-5-2008.

The Tribunal held that activities falling under the Service Tax net from 16-5-2008 onwards cannot be categorized differently for the period before that date. This principle was established in previous Tribunal decisions, such as the case of Board of Control for Cricket in India and the judgment of the Hon'ble High Court of Mumbai in the case of Indian National Shipowners' Association.

Considering the circumstances, the Tribunal found merit in the appellant's case for waiver of pre-deposit of the amounts in question. Consequently, the application for waiver of pre-deposit of the remaining amounts was granted, and the recovery was stayed pending the appeal's disposal. The decision was dictated and pronounced in court by the Tribunal.