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2015 (6) TMI 917 - HC - Service TaxWaiver of pre-deposit - Outdoor catering services - Service tax not paid on catering services in respect of the Mail/Express trains - Notification No.2/2006-ST dated 1.3.2006 - Held that - In view of the different views taken by two Courts i.e. Delhi high court in the case of INDIAN RAILWAYS CATERING & TOURISM CORPORATION LTD Versus GOVT OF NCT OF DELHI & ORS 2010 (7) TMI 174 - HIGH COURT OF DELHI , Kerala high court in the case of SAJ Flight Services Pvt. Ltd. V. Superintendent of Central Excise reported in 2005 (8) TMI 20 - HIGH COURT (KERALA) and going by the nature of the services provided by the appellant as alleged by the Department in the adjudication order, we find that this issue still remains debatable on facts and on law. We, therefore, not inclined to go into the merits of the case. However, taking note of the financial hardship pleaded and in view of the uncertainty on the levy of service tax, which we find is still a debatable issue, we are inclined to modify the brief and non-speaking order of the Tribunal. - amount of pre-deposit reduced to 50% - Decided partly in favour of assessee.
Issues Involved:
1. Error of law by CESTAT in disregarding Supreme Court and High Court judgments. 2. Error of law by CESTAT in disregarding factors for waiver-cum-stay application. 3. Liability of service tax on catering services provided on trains. 4. Financial hardship of the appellant. Issue-wise Detailed Analysis: 1. Error of Law by CESTAT in Disregarding Supreme Court and High Court Judgments: The appellant contended that the CESTAT ignored principles established by the Supreme Court in Northern India Caterers (India) Limited v. Lt. Governor of Delhi and Tamil Nadu Kalyana Mandapam Association v. Union of India, as well as the Delhi High Court's judgment in M/s. IRCTC vs. Government of NCT of Delhi. The Tribunal's decision was primarily based on the Supreme Court's ruling in Imagic Creative Pvt. Ltd. v. Commissioner of Commercial Taxes, which mandated a pre-deposit. The Tribunal found that the Delhi High Court's decision pertained to sales tax, not service tax, thus not directly applicable to the present case. 2. Error of Law by CESTAT in Disregarding Factors for Waiver-cum-Stay Application: The appellant argued that the CESTAT failed to consider relevant factors for waiver-cum-stay applications. The Tribunal ordered a pre-deposit of substantial amounts, which the appellant claimed would cause financial hardship. The High Court acknowledged the financial hardship plea, noting the appellant's significant service costs and the potential impact on their long-term contract with the Indian Railways. 3. Liability of Service Tax on Catering Services Provided on Trains: The appellant was a contractor for IRCTC, providing food and refreshments on trains. Initially, such services were exempt from service tax until 1.3.2006, after which they became taxable. The Adjudicating Authority determined that the appellant failed to pay service tax for services on Mail/Express trains, despite paying for Rajdhani/Shatabdi trains. The Authority relied on the Supreme Court's decision in Tamil Nadu Kalyana Mandapam Association V. UOI, equating the appellant's services to outdoor catering in factory canteens, thus liable for service tax. The Authority also referenced the Kerala High Court's decision in SAJ Flight Services Pvt. Ltd. V. Superintendent of Central Excise, supporting the service tax levy. 4. Financial Hardship of the Appellant: The appellant claimed financial hardship, arguing that the pre-deposit demand would cripple their 30-year contract. The High Court found merit in this plea, noting the uncertainty in service tax liability due to differing judicial views. Consequently, the High Court modified the Tribunal's order, reducing the pre-deposit amounts and allowing staggered payments to alleviate financial strain. Conclusion: The High Court modified the Tribunal's order, reducing the pre-deposit amounts and allowing staggered payments due to financial hardship and the debatable nature of the service tax issue. The appellant was directed to pre-deposit 50% of the modified amount within four weeks, with the remaining 50% to be deposited within an additional four weeks. The balance amount's collection was stayed during the appeal's pendency. The appeals were ordered in these terms, with no costs, and connected miscellaneous petitions were closed.
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