2015 (4) TMI 496 - AT - Service Tax

Waiver of pre deposit - Denial of exemption claim for non dis-closer of foreign commission in the return filed belated - Held that - Appellants have at least substantially satisfied the conditions for exemption under Notification No.18/2009-ST. Further it also needs to be appreciated that even if the tax had been paid on such commission paid to commission agents based abroad, prima facie the same would have been available to the appellants as credit. We also find force in the contentions of the appellants that no service tax is chargeable under Business Exhibition Service when such exhibitions were held abroad and that no service tax is chargeable under Technical Inspection and Certification service when no inspection or certification took place. We do not agree with the contention of the Ld. Departmental Representative that the service tax under GTA service is correctly confirmed because the appellants did not provide them the evidence that the transport was undertaken in truck owned by individuals and no consignment notes were issued because the onus lies on Revenue to prove the liability to service tax under GTA service. - balance of convenience in this is case is clearly in favour of the appellants and they have made out a good case for complete waiver of pre-deposit. Accordingly, we waive the requirement of pre-deposit and stay recovery of the impugned liability during pendency of the appeal. - Stay granted.

Summary

Issues:
1. Stay application and appeal against Order-in-Original confirming service tax demands.
2. Contention regarding Business Auxiliary Service demand.
3. Contention regarding Business Exhibition Service demand.
4. Contention regarding Technical Inspection and Certification Service demand.
5. Contention regarding Goods Transport Agency Service demand.
6. Interpretation of Notification No.18/2009-ST conditions.
7. Burden of proof in confirming liability to service tax.

Analysis:

1. The appellants filed a Stay Application and Appeal against the Order-in-Original confirming service tax demands totaling various amounts under different services. The demands were related to Business Auxiliary Service, Business Exhibition Service, Technical Inspection and Certification Service, and Goods Transport Agency Service.

2. Regarding the Business Auxiliary Service demand, the appellants contended that the commission paid to overseas agents for exports should be exempted under Notification No.18/2009-ST. They argued that the procedural lapses should not deny substantive benefits, citing relevant judgments supporting their claim.

3. Concerning the Business Exhibition Service demand, the appellants argued that as the exhibitions were held abroad, they should not be liable to pay service tax for those events.

4. For the demand under Technical Inspection and Certification Service, the appellants clarified that the payment was for obtaining literature, not for actual testing or inspection services.

5. Regarding the Goods Transport Agency Service demand, the appellants stated that they engaged individual truck owners for transportation and did not receive services from a transport agency, hence disputing the liability for service tax.

6. The Tribunal considered the conditions of Notification No.18/2009-ST and opined that the appellants substantially met the exemption criteria. They also highlighted that even if tax was paid on commission to overseas agents, credit would have been available to the appellants.

7. The Tribunal found merit in the appellants' arguments regarding the exhibitions held abroad, lack of actual inspection or certification services, and the burden of proof on the Revenue to establish liability under Goods Transport Agency Service. Consequently, the Tribunal ruled in favor of the appellants, waiving the pre-deposit requirement and staying the recovery of the disputed liability during the appeal process.