2009 (5) TMI 239 - AT - Service Tax

Demand limitation - Appellant were discharging the Service tax liability under the category of Custom House Agent (CHA) Services during the period 2006-2007. The tax was paid on 15% of the gross receipts in terms of Board s Circular No. B43/1/97-TRU - In fact, during the relevant period, the issue of payment of Service tax under the category of CHA services was a subject matter of Adjudication - On a very careful consideration of the issue, prima facie, we find that all the facts were available at the time of the first adjudication - It is seen that for the same period, earlier Service tax liability was discharged under CHA services whereas in the impugned order confirmation has been done under the category of Port Services - We find that the first order has not been reviewed, in our view, the invocation of longer period does not appear to be justifiable. Prima facie, the appellants have a strong case on merits. stay granted

Summary

Issues:
1. Pre-deposit amounts required by the appellants.
2. Discharge of Service tax liability under CHA services.
3. Justification for invocation of the longer period.
4. Comparison with previous decisions.
5. Interpretation of Section 73 in relation to other sections.
6. Decision on waiver of pre-deposit and stay order.

Analysis:

Issue 1: Pre-deposit amounts required by the appellants
The appellants were required to pre-deposit various amounts, including Service Tax, Education Cess, penalties under different sections, and Rule 7C of Service Tax Rules. The advocate for the appellant requested a waiver of the pre-deposit based on previous decisions and facts presented.

Issue 2: Discharge of Service tax liability under CHA services
The appellants were discharging Service tax liability under the category of Custom House Agent (CHA) Services during a specific period. The Original Authority concluded that the appellants should discharge Service tax liability under CHA services after examining all relevant facts and activities. This decision was not challenged by the Revenue at a higher forum.

Issue 3: Justification for invocation of the longer period
The Departmental Representative argued that there was an escapement of Service Tax due to certain facts not known during the original proceedings, justifying the invocation of the longer period. However, the Tribunal found that all facts were available during the initial adjudication, and the invocation of the longer period did not seem justifiable.

Issue 4: Comparison with previous decisions
The advocate relied on a previous decision by the Bench in a similar case decided in favor of the assessee. The Tribunal found that the facts presented were before the Revenue, and there was no justification for invoking the longer period based on these facts.

Issue 5: Interpretation of Section 73 in relation to other sections
The JCDR highlighted that the ingredients of Section 73 are different from those of other sections like Section 11A of the Central Excise Act or Section 78 of the Customs Act. The Commissioner's elaboration on this point in the Adjudication Order was considered.

Issue 6: Decision on waiver of pre-deposit and stay order
After careful consideration, the Tribunal found that the appellants had a strong case on merits and ordered a complete waiver of the pre-deposit of the dues demanded in the impugned order until the appeal was decided. No coercive measures were to be taken during this period, even beyond 180 days, in line with a previous Apex Court judgment. The matter was scheduled for further hearing on a specified date.