2014 (1) TMI 1249 - AT - Service Tax

Waiver of pre-deposit of Service Tax - Penalty u/s 78 - Business Auxiliary Service - Held that - Applicant are engaged in the production and supply of the coal; and sizing of coal is one of the activities of their integrated process in production and supply of the coal. They are required to supply coal of the size not exceeding 200 mm. to 250 mm., for which they undertake the activity of sizing of coal. Prima facie, we find that the element of cost of sizing of coal is included in the assessable value for payment of sales tax, which is also revealed from the sales tax receipt. The fact that the activity was brought under the Central Excise net with effect from March, 2011, also is not in dispute. Prima facie, we find that sizing of coal is part of the integrated process of mining and sale of coal. In these circumstances, we find that the Applicant are able to make out a prima facie case for total waiver of the pre-deposit - Stay granted.

Summary

Issues:
Waiver of pre-deposit of Service Tax, penalty under Section 78 of the Finance Act, 1994, and penalty for failure to amend Service Tax Registration under Section 7.

Analysis:
The Applicant sought a waiver of pre-deposit of Service Tax, penalty, and failure to amend Service Tax Registration. The Applicant, engaged in mining and selling coal, argued that sizing of coal is part of an integrated process and not liable to Service Tax under 'Business Auxiliary Service'. They highlighted that Central Excise duty was levied on coal from March 2011, and the demand for that period was dropped. The Applicant's contracts specified coal sizes and they paid Central Excise duty accordingly. They argued that the cost of sizing coal is included in the assessable value for sales tax, supported by relevant decisions. The Department reiterated the Commissioner's findings.

The Tribunal noted the Applicant's coal production and sizing activities as part of an integrated process. The coal supplied was specified in size, and the cost of sizing was included in the assessable value for sales tax, as evidenced by sales tax receipts. The Tribunal acknowledged that sizing of coal was brought under Central Excise from March 2011. Considering these factors, the Tribunal found a prima facie case for waiving the pre-deposit requirement. Consequently, the Tribunal granted a total waiver of pre-deposit and stayed the recovery during the Appeal's pendency, allowing the Stay Petition.

In conclusion, the Tribunal granted the Applicant's request for waiver of pre-deposit of Service Tax, penalty under Section 78 of the Finance Act, 1994, and penalty for failure to amend Service Tax Registration. The Tribunal found that sizing of coal was an integral part of the Applicant's mining and coal sale activities, with the cost of sizing included in the assessable value for sales tax. The Tribunal's decision was based on the prima facie case presented by the Applicant, leading to the allowance of the Stay Petition and the waiver of the pre-deposit requirement.