2015 (1) TMI 91 - HC - Service Tax

Waiver of pre deposit - rent-a-cab operator services - contravention of the provisions of Section 70 of the Finance Act, 1994 read with Rule 7 of the Service Tax Rules, 1994 - Held that - On a prima facie case taken by the appellant that for the previous year where the proceedings initiated by the Department was set aside by the Tribunal and that being the case for the subsequent period, the said benefit should enure to the appellant insofar as the pre-deposit is concerned. As against the earlier order of the Tribunal for the previous year, an appeal has been filed by the Department, in respect of another issue which is stated to be pending before this Court - In the light of the above, pending the above proceedings, the appellant is entitled to waiver of entire pre-deposit - Decided in favour of assessee.

Issues:
1. Overlooking legal principles by a single Member of the Customs, Excise and Service Tax Appellate Tribunal.
2. Non-maintainability of a second show cause notice alleging suppression on the same subject matter.
3. Ignoring the final finding of the Division Bench of the same Tribunal.

Issue 1: Overlooking Legal Principles by Tribunal Member
The appellant challenged the Miscellaneous Order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Chennai, on the grounds of overlooking legal principles. The appellant contended that a single Member of the Tribunal failed to adhere to the principle laid down by the Apex Court regarding the non-maintainability of a second show cause notice alleging suppression on the same subject matter. The Tribunal had issued a show cause notice to the assessee for contravening provisions of the Finance Act, 1994. The appellant argued that the Tribunal disregarded the legal principles established by the Apex Court in similar cases.

Issue 2: Non-Maintainability of Second Show Cause Notice
The second question of law raised in the appeal was the non-maintainability of a second show cause notice alleging suppression on the same subject matter. The appellant, a rent-a-cab operator, had provided services to M/s.BSNL and received a show cause notice for not paying appropriate service tax and for not filing prescribed returns. The appellant contended that they had not collected any service tax from M/s.BSNL and had not suppressed any relevant facts. The Adjudicating Authority passed an order demanding service tax, interest, and penalties. The appellant argued that the second show cause notice was not legally sustainable due to the absence of suppression of facts and non-collection of service tax from the service recipient.

Issue 3: Ignoring Final Finding of Division Bench
The third issue involved the Tribunal overlooking the final finding of the Division Bench of the same Tribunal on the same set of facts involving the same appellant. The Commissioner (Appeals) had confirmed the order of the Adjudicating Authority, leading the appellant to file an appeal before the Tribunal. The Tribunal declined to grant absolute stay of pre-deposit, emphasizing that the appellant had not contested the issue on merit but solely on limitation. However, the appellant argued that for a previous period subject to a show cause notice, the Tribunal had set aside the tax and penalty, indicating a similar benefit should apply for the subsequent period. The High Court, considering the previous Tribunal's order and pending proceedings, allowed the appeal, setting aside the Tribunal's order and granting waiver of entire pre-deposit.

This judgment addresses the issues of overlooking legal principles, the non-maintainability of a second show cause notice, and ignoring the final findings of the Division Bench. The High Court's decision provides clarity on the application of legal principles and the implications of previous Tribunal decisions on subsequent cases.

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