2009 (4) TMI 75 - HC - Service Tax

Petitioner s contention is that Tribunal, has earlier decided the very same issue as to whether providing of photography service attracts service tax, in favour of the assessee. That being so, there is no justification for directing the petitioner to deposit 25% of the duty revenue pleaded that said tribunal s order is stayed by HC held that stay granted by the Division Bench does not alter the position in so far as, as on today, the law is as laid down by the Tribunal strong prima facie case in petitioner s favour - Appellate Authority should have granted full waiver of pre-deposit of the entire duty in dispute

Summary

Issues:
Challenge to Ext.P7 order of the Commissioner of Central Excise, Customs, and Service Tax (Appeals) regarding waiver of pre-deposit of disputed amount.

Analysis:
The petitioner, engaged in providing photography services, challenged Ext.P7 order of the Commissioner of Central Excise, Customs, and Service Tax (Appeals) related to waiver of pre-deposit of the disputed amount filed with the appeal against Ext.P4 order. The petitioner was asked to explain why the gross value of sales from July 2001 to September 2005 was not included in the amount, leading to a demand for differential tax, educational cess, interest, and penalties. Despite detailed responses, the demand was confirmed in Ext.P4 order, prompting the petitioner to file an appeal (Ext.P5) seeking waiver of pre-deposit. The Appellate Authority directed the petitioner to deposit 25% of the confirmed duty for the waiver, which was contested in the writ petition.

The petitioner argued that the Customs, Excise, and Service Tax Appellate Tribunal had previously ruled in favor of the assessee regarding the taxation of photography services, thus justifying a full waiver of the pre-deposit. However, the respondent's counsel contended that the Tribunal's decision was stayed by a Division Bench of the Court, making it inapplicable in this case. The counsel also highlighted that similar orders of the Tribunal were stayed by another Division Bench.

Despite the stay granted by the Division Bench, the Court emphasized that the law, as established by the Tribunal, remains in effect until altered. Considering the petitioner's strong prima facie case and the favorable legal precedent, the Court opined that the Appellate Authority should have granted a complete waiver of the disputed duty amount. Consequently, the writ petition was allowed, Ext.P7 order was quashed, and the 1st respondent was directed to provide an unconditional waiver of the pre-deposit amount, allowing the appeal to be considered on its merits without any deposit requirement.