2013 (12) TMI 788 - AT - Service Tax

Waiver of pre-deposit and stay of recovery - Service Tax and Education Cess - GTA services - Held that - appellant has made out a prima facie case against the demand of Service Tax on the facts and circumstances of this case and in view of the stay order cited by the learned counsel, wherein waiver and stay were granted against a similar demand of service tax on transportation of goods by individual transporters. In the result, there will be waiver of pre-deposit and stay of recovery in respect of the adjudged dues - Decided in favour of assessee.

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Waiver of pre-deposit and stay of recovery regarding Service Tax and penalty.

Condonation of Delay:
The appellant filed an appeal with a delay of 291 days from the expiry of the statutory period due to circumstances explained in a CoD application and affidavits. The delay was attributed to the departure of the Manager-Accounts without handing over necessary records, the appellant being declared sick by BIFR, and operating with minimal staff during the off-season. The CoD application was supported by an Office Order and the records were eventually traced out in November 2010. The Tribunal, after hearing the Deputy Commissioner, allowed the CoD application considering the peculiar circumstances of the case and finding the appellant's explanation believable.

Waiver of Pre-deposit and Stay of Recovery:
The second application sought waiver and stay of recovery for a demanded amount of Service Tax, Education Cess, and penalty related to GTA services for the transportation of sugarcane. The appellant claimed that the transportation was not conducted by a Goods Transport Agency and therefore, the tax on reimbursed amounts should not apply. The appellant cited a previous Stay Order in support of their claim. The Deputy Commissioner opposed the stay application based on findings of the original and first appellate authorities. However, the Tribunal, after considering the submissions, found that the appellant had made a prima facie case against the demand of Service Tax, especially in light of the cited stay order, and granted waiver of pre-deposit and stay of recovery for the adjudged dues.

This judgment by the Appellate Tribunal CESTAT Bangalore addressed the issues of condonation of delay in filing the appeal and waiver of pre-deposit and stay of recovery regarding Service Tax and penalty. The Tribunal allowed the condonation of delay application after considering the appellant's explanation for the delay as believable due to specific circumstances. Additionally, the Tribunal granted waiver of pre-deposit and stay of recovery for the demanded amount of Service Tax and penalty related to GTA services, finding a prima facie case in favor of the appellant based on the facts and circumstances presented, along with a supportive previous stay order.