2014 (1) TMI 818 - AT - Service Tax

Waiver of pre deposit - Demand of service tax - Clearing & Forwarding Agent services - Held that - appellant in this case in order to be covered under the Clearing & Forwarding Agent Services, has not done any activity of clearing the coal from the mines. It is on record that the appellant is only supervising the loading of the coal in the railway yard and has not been given any activity for doing the supervision at the mine end - in order to get covered under the Clearing & Forwarding Agent services, the assessee is required to clear as well as forward the goods. In this case, there being absence of both the activities, prima facie, we find that the appellant has made out a case for waiver of pre-deposit of the amounts involved - application for waiver of pre-deposit of balance amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Following decision of Kulcip Medicines Ltd 2009 (2) TMI 89 - PUNJAB AND HARYANA HIGH COURT - Stay granted.

Summary

Issues:
Waiver of pre-deposit of Service Tax, interest, and penalty under the category of Clearing & Forwarding Agent services.

Analysis:
The appellant filed a Stay Petition seeking waiver of pre-deposit of Service Tax amounting to Rs.38,82,702/-, along with interest and penalty, confirmed by lower authorities under Clearing & Forwarding Agent services. Both lower authorities held the appellant liable based on the contract with Gujarat Electricity Board, requiring pre-payment of railway freight, vigilance on coal movement route, coordination with railway authorities, and supervision of coal loading into railway wagons. However, upon review, it was found that the appellant did not engage in clearing coal from mines but supervised loading in railway yards without involvement at the mine end. Citing the judgment of the Hon'ble Apex Court of Punjab & Haryana in Kulcip Medicines Ltd, which emphasized the necessity to both clear and forward goods for Clearing & Forwarding Agent services, it was concluded that the appellant's activities did not align with the requisite criteria, warranting a waiver of pre-deposit.

The Tribunal acknowledged that the appellant's actions did not encompass the essential elements of clearing and forwarding goods as mandated for Clearing & Forwarding Agent services. By referencing the legal precedent set by the Punjab & Haryana High Court, it was determined that the appellant's supervisory role in loading coal at railway yards did not meet the criteria for the category in question. Consequently, the Tribunal granted the application for waiver of pre-deposit, allowing a stay on recovery until the appeal's disposal. This decision was based on the absence of activities related to clearing goods from mines, highlighting the significance of fulfilling the specific requirements outlined for Clearing & Forwarding Agent services to establish liability for Service Tax.

In conclusion, the Tribunal's judgment focused on the fundamental aspect of whether the appellant's actions aligned with the criteria for Clearing & Forwarding Agent services, emphasizing the need for both clearing and forwarding activities to be undertaken. By analyzing the appellant's role in supervising coal loading and its deviation from the prescribed requirements, the Tribunal found merit in granting the waiver of pre-deposit based on the absence of essential activities associated with the designated category. The decision underscored the importance of meeting specific criteria to establish liability for Service Tax under the Clearing & Forwarding Agent services, as outlined in the legal precedent referenced during the proceedings.