2014 (6) TMI 273 - AT - Service Tax

Waiver of pre deposit - Demand of service tax - C & F Agency services - Held that - Original Adjudicating Authority having dropped the demand, the appellant would be entitled to stay on the above point. Nothing has been shown to us indicating that the appellants were acting as C & F Agent for the principal. On the other hand, we find that the appellants were buying and selling the goods on the basis of the invoices issued by the principal and the sales invoices/cash memos issued by them. As such, at this prima facie stage, we are of the view that the appellant has been able to make out a good case in their favour so as to allow the stay petition unconditionally - Stay granted.

Summary

Issues:
1. Confirmation of service tax against the appellant for providing C & F Agency services.
2. Original Adjudicating Authority's acceptance of the appellant's stand leading to dropping of the demand.
3. Commissioner's order-in-revision confirming the demand due to lack of proof from the appellant.
4. Appellant's entitlement to stay based on the Original Adjudicating Authority's decision and lack of evidence showing C & F Agency services.

Analysis:
1. The judgment revolves around the confirmation of service tax against the appellant for allegedly providing C & F Agency services to a specific company. The appellant contended that they merely acted as a trader, selling cement to customers from their shop under their own sales bills. The Original Adjudicating Authority accepted this plea, resulting in the demand being dropped initially.

2. Subsequently, the Commissioner reviewed the case and issued a show cause notice, ultimately confirming the demand. The Commissioner's decision was based on the lack of proof supporting the appellant's claim of purchasing and selling cement in retail. However, the Tribunal opined that since the Original Adjudicating Authority had previously dropped the demand, the appellant should be granted a stay on this issue.

3. The Tribunal noted that there was no evidence indicating that the appellant functioned as a C & F Agent for the principal company. On the contrary, it was observed that the appellant conducted transactions based on the principal's invoices and their own sales documents. Consequently, at this preliminary stage, the Tribunal found merit in the appellant's case, allowing the stay petition unconditionally.

4. In conclusion, the Tribunal's decision favored the appellant, emphasizing the lack of substantiation for the allegation of providing C & F Agency services. The judgment highlighted the importance of the Original Adjudicating Authority's initial ruling and the absence of concrete evidence supporting the Commissioner's revision order. As a result, the appellant was granted a stay on the demand, pending further proceedings.