2014 (7) TMI 1046 - AT - Service Tax

Waiver of pre deposit - service provided to associated enterprises - amendment to section 67 is prospective or retrospective in nature - man-power recruitment and supply services and engineering consultancy services - Held that - in view of insertion of Explanation (c) in section 67 of the Finance Act, 1994 on May 10, 2008, where the transaction is with any associated enterprises, the service tax on taxable service is liable to be paid as soon as the transaction is entered in the books of account - the transaction of the taxable service with the associated enterprises was entered in the books of account prior to May 14, 2008 and waiting for actual remittances. Amount in question was not realised till date and was shown in the balance sheet - they have also realised part amount and against which they have already paid an amount of ₹ 1,13,642. Prima facie, the Tribunal had given a detailed finding on the issue of applicability of the Explanation prospectively - applicant has made out a prima facie case for waiver of pre-deposit of the entire amount of tax and penalty - Following decision of Sify Technologies Ltd. 2012 (5) TMI 376 - CESTAT, CHENNAI and 2010 (11) TMI 232 - CESTAT, CHENNAI - Decided in favour of assessee.

Summary

Issues involved:
1. Change in cause title in the appeal.
2. Stay application for waiver of pre-deposit of tax, interest, and penalty under the Finance Act, 1994.

Change in Cause Title:
The Revenue filed a Miscellaneous Application for a change in the cause title, requesting to replace the respondent's name in the appeal with "Commissioner of Service Tax, Chennai." The Tribunal directed the correction in the cause title as requested. The applicant sought waiver of pre-deposit of tax, interest, and penalty under the Finance Act, 1994. The applicant was registered for providing services and had a balance of tax receivables from associated companies. The demand of tax, interest, and penalty was confirmed based on a clarificatory Explanation inserted in the Act. The applicant cited precedents where amendments were held to be prospective, seeking a similar treatment.

Stay Application Analysis:
The applicant applied for waiver of pre-deposit of tax, interest, and penalty under the Finance Act, 1994. The dispute arose from the insertion of Explanation (c) under section 67 of the Act, making the applicant liable for tax on transactions with associated enterprises. The adjudicating authority applied the Explanation retrospectively, leading to the demand of tax, interest, and penalty. The applicant argued that precedents supported a prospective application of such amendments. The Revenue contended that the Explanation covered amounts shown in the balance sheet even before its insertion. The Tribunal analyzed the legislative intent behind the amendments and cited cases where clarificatory amendments were held to be prospective.

Stay Application Decision:
After hearing both parties, the Tribunal found that the applicant had a prima facie case for waiver of pre-deposit of tax and penalty. The Tribunal noted that the Division Bench had previously supported the applicant's contention based on the single Member Bench decision. The applicant had not realized the amount in question, which was reflected in the balance sheet. Considering the precedents and the circumstances of the case, the Tribunal granted the applicant's request for waiver of pre-deposit of the entire amount of tax and penalty. The Tribunal's decision was based on the interpretation of the applicability of the Explanation prospectively, as supported by legal precedents and the specific facts of the case.

This detailed analysis covers the issues of the change in cause title in the appeal and the stay application for waiver of pre-deposit of tax, interest, and penalty under the Finance Act, 1994, providing a comprehensive understanding of the judgment.