2013 (12) TMI 1227 - AT - Service Tax

Waiver of pre deposit - Demand of service tax - Renting of Immovable Property Service - Held that - a crucial fact was not pleaded before that authority by the party, nor did they plead it before the appellate authority. Before this Tribunal, however, they have pleaded the fact categorically. It has been stated that some of the buildings were rented out to the State Government/Departments for non-commercial use - It is incumbent on the appellant, however, to establish that the premises were actually allowed, under lease, to be used by Government offices. Prima facie, subject to proof of such use of the buildings, the appellant can claim exemption from the levy, given the definition of Renting of Immovable Property under Section 65(90a) of the Act and the definition of the taxable service under Section 65(105)(zzzz) of the Act. In this scenario, we are inclined to remand the case to the original authority, for the ends of justice, to enable the appellant to prove their case before that authority and to enable that authority to take a correct decision on the facts of the case - Decided in favour of assessee.

Summary

Issues:
Delay in filing appeal, waiver and stay against adjudged dues, demand of service tax on renting of immovable property to non-commercial institutions, remand for de novo adjudication.

Delay in filing appeal:
The judgment addresses an 8-day delay in filing the appeal, which the appellant satisfactorily explained, leading to the COD application being allowed.

Waiver and stay against adjudged dues:
The appellant sought waiver and stay against adjudged dues, but the Tribunal decided to finally dispose of the appeal at that stage after dispensing with pre-deposit, considering the total amount paid by the appellant and the recovery made by the department under Section 87 of the Finance Act 1994.

Demand of service tax on renting of immovable property to non-commercial institutions:
The appellant argued that the demand of service tax on renting immovable property to non-commercial institutions like government departments should not be applicable. The appellant highlighted that certain buildings were rented out to state government departments for non-commercial use, supported by detailed financial data. The Tribunal found merit in the appellant's argument and remanded the case to the original authority for de novo adjudication based on the new facts presented before the Tribunal.

Remand for de novo adjudication:
The Tribunal decided to remand the case to the original authority for a fresh adjudication due to the crucial fact not being raised before the original authority or the appellate authority but being presented before the Tribunal. The appellant was directed to establish that the premises were indeed leased to government offices to claim exemption from the service tax levy, as per the relevant sections of the Finance Act 1994. The Tribunal set aside the impugned order, allowing the appeal by way of remand for a fair opportunity for the appellant to prove their case.

This comprehensive analysis of the judgment covers the issues of delay in filing the appeal, waiver and stay against adjudged dues, the demand of service tax on renting immovable property to non-commercial institutions, and the remand for de novo adjudication, providing a detailed insight into the legal reasoning and decision-making process of the Appellate Tribunal CESTAT Bangalore.