2015 (7) TMI 551 - AT - Service Tax

GTA service - Abatement - packaging commission paid to the overseas firm - Held that - In so far as demand under GTA service is concerned appellants have already paid ₹ 1,31,352/- after claiming abatement of 75% even though the same was not allowed by the adjudicating authority. If abatement is considered, they have already paid entire service tax except interest. - service tax demand on the service rendered by the overseas person - service provider at UK agrees to packing or repacking as required by the buyer of the First Part for which consideration has been paid not exceeding 5% of the invoice. Therefore, the amount paid to the overseas person is for the packaging of garments at Ireland, U.K. though it is mentioned as packaging commission . Therefore, taking into consideration the service tax paid ₹ 1,31,352/- paid on GTA and the service rendered by the overseas person is only packaging of garments and not for procurement of orders, the appellant has made out prima facie case for waiver of predeposit - Stay granted.

Summary

Issues:
1. Restoration of appeal and non-prosecution
2. Delay in filing appeal before Tribunal
3. Demand of service tax under BAS on commission paid to overseas person and GTA outward transportation service

Issue 1: Restoration of appeal and non-prosecution

The appellant filed an application for restoration of the appeal, which was dismissed due to non-prosecution. The consultant explained the reasons for non-appearance on specific dates. The Tribunal found the reasons genuine and allowed the restoration of the appeal along with the COD and stay applications.

Issue 2: Delay in filing appeal before Tribunal

The appellant explained a delay of 77 days in filing the appeal before the Tribunal due to the illness and subsequent resignation of the Manager-Accounts handling legal matters. The delay was condoned considering the genuine reasons provided, and the COD application was allowed. The stay application was taken up for hearing with the consent of both parties.

Issue 3: Demand of service tax under BAS on commission paid to overseas person and GTA outward transportation service

The adjudicating authority demanded service tax under BAS on commission paid to an overseas firm for packaging services and on GTA outward transportation service. The consultant argued that the packing services were rendered outside India and fell under a different classification. The AR contended that the commission was rightly classified under BAS. The Tribunal found that the amount paid to the overseas person was for packaging services, not for procurement of orders. Stay was granted for the balance demand during the appeal, considering the service tax already paid on GTA.

This judgment addressed the restoration of the appeal, condonation of delay in filing the appeal, and the demand of service tax under BAS. The Tribunal allowed the restoration of the appeal, condoned the delay due to genuine reasons, and granted stay on the balance demand during the appeal process.