2019 (5) TMI 1181 - AT - Service Tax

Non-compliance with mandatory pre-deposit - Section 35F of Central Excise Act, read with Section 83 of the Finance Act, 1994 - service tax has been paid by M/s Hindustan Unilever Limited under GTA services on Reverse Charge basis - HELD THAT - It is seen that in the appellant s own case vide Miscellaneous Order No. M/30067-30068/2019 2019 (5) TMI 1097 - CESTAT HYDERABAD , the Tribunal had allowed the plea of the appellant that since M/s Hindustan Unilever Limited has paid up the service tax demand under GTA services, the same may be treated as compliance of mandatory pre-deposit on their part. The appellant has complied with the mandatory requirement of pre deposit, taking into consideration that the service tax has been paid by M/s Hindustan Unilever Limited under GTA services on Reverse Charge basis. Appeal admitted.

Summary

Issues:
1. Non-compliance with mandatory pre-deposit under Section 35F of Central Excise Act.
2. Classification of services as 'Clearing & Forwarding Services' or 'Goods Transport Agency Services'.
3. Compliance with pre-deposit requirement based on payment by the service recipient.
4. Rectification of other defects noted by the Registry.

Analysis:
1. The appeal was brought before the Appellate Tribunal due to defects noted by the Registry, primarily the appellant's failure to comply with the mandatory pre-deposit under Section 35F of the Central Excise Act, along with Section 83 of the Finance Act, 1994. The issue at hand revolved around the classification of services rendered by the appellant, disputed between 'Clearing & Forwarding Services' as asserted by the Department and 'Goods Transport Agency Services' as claimed by the appellant.

2. During the hearing, the appellant's Counsel argued that the service recipient, M/s Hindustan Unilever Limited, had already paid the entire service tax demand under the category of GTA services. The appellant contended that this payment should be considered as fulfilling the pre-deposit requirement, citing similar orders from the Tribunal in a previous matter involving the appellant. The Departmental Representative countered the argument during the proceedings.

3. Upon reviewing the submissions and records, the Tribunal referred to a previous decision in the appellant's case where the Tribunal had followed a ruling of the Hon'ble Jurisdictional High Court of Andhra Pradesh and Telangana. The High Court's decision highlighted that if the service recipient had paid the service tax demand under GTA services, it could be deemed as compliance with the mandatory pre-deposit. Relying on this precedent and the previous order of the Bench, the Tribunal concluded that the appellant had indeed met the pre-deposit requirement, given the payment by M/s Hindustan Unilever Limited under GTA services on a Reverse Charge basis.

4. Additionally, the Tribunal addressed and rectified other defects noted by the Registry, such as the requirement of a Board Resolution and Undertaking. Consequently, the defects were vacated, and the Registry was instructed to admit and number the appeal, bringing a resolution to the issues raised during the proceedings.