2013 (12) TMI 1437 - AT - Service Tax

Support services of business or commerce- The applicants filed this application for waiver of predeposit of service tax and penalties. Held that- the applicants only given on hire one crane. Therefore, prima-facie, merit in the contention of the applicants and predeposit of amounts of service tax, interest and penalties are waived and recovery of the same is stayed during pendency of the appeal - Following decision of INDUSTRIAL SERVICES (GASES) Versus COMMISSIONER OF C. EX., HALDIA 2010 (4) TMI 339 - CESTAT, KOLKATA - Prima facie case in favour of assessee - Stay granted.

Summary

Issues:
Interpretation of service tax category for making cranes available for various activities, applicability of specific vs. residual entry, waiver of pre-deposit and stay on collection of dues during appeal.

Analysis:
The case involved the appellants owning industrial cranes and providing them for different purposes, including erecting wind mill towers, for which they were paying service tax under Erection and Commissioning Service category since July 2005. However, they were also making the cranes available for other activities not falling under this category. After a new entry for taxing the supply of tangible goods came into force in May 2008, the appellants registered under this category and started paying service tax for cranes supplied for all activities. Subsequently, the Revenue issued a show cause notice claiming that services provided by the appellants before May 2008 should be covered under Business Support Service, demanding payment for the portion of remuneration not previously taxed. An amount was confirmed against the appellants upon adjudication.

The counsel for the appellants argued that making cranes available should be classified under Supply of Tangible Goods services rather than Business Support Service, which was a residual entry lacking clarity. He emphasized that specific entries take precedence over residual ones, and activities not explicitly mentioned should not fall under a residual category. The counsel cited previous Tribunal cases where it was held that supply of tangible goods could not be taxed under Business Support Service during the relevant period, seeking admission of the appeal without pre-deposit and requesting a stay.

In response, the Revenue contended that Business Support Service encompassed any service provided for remuneration, asserting that by providing cranes, the appellants were supporting the business activities of the recipients. The Tribunal considered both arguments and found that Business Support Service being a residual entry could not cover the activity of supplying tangible goods, especially when a specific entry for such services was introduced. Relying on precedent decisions and the Tribunal's previous views, the waiver of pre-deposit was granted, and there was a stay on the collection of dues pending the appeal.

In conclusion, the Tribunal ruled in favor of the appellants, acknowledging the specificity of the service tax category for supplying tangible goods and granting relief based on the precedence set by earlier decisions.