2010 (4) TMI 401 - AT - Service Tax

Failure to make pre-deposit- The appellant collects toll fees to achieve the objective of maintenance of road on behalf of NHAI. Held that- no uniformity in approach by authorities and such grounds sufficient for pre-deposit waiver. Stay application disposed and matter remanded Commissioner (Appeals).

Summary

Issues:
1. Discrepancy in the approach of Authorities regarding pre-deposit for hearing the appeal.
2. Classification of the appellant's activity as a business auxiliary service.

Analysis:
1. The appellant's representative argued that a Modified Order was issued without considering the case's merits, leading to a pre-deposit requirement by the Appellate Authority. The appellant's appeal was dismissed for non-payment, highlighting a conflicting view among Commissioners on the matter. The appellant sought dispensation of pre-deposit due to the alleged discriminatory approach of the Authorities. The Counsel emphasized relief granted by the Commissioner (Appeals) in a previous order, questioning the need for pre-deposit to proceed with the appeal.

2. The Departmental Representative referred to a previous case involving PNC Construction Co. Ltd. where pre-deposit was mandated by the Appellate Tribunal. The DR argued that a similar approach should be taken in this case, suggesting that the appellant should not be heard without making the required pre-deposit. However, after hearing both sides and examining the records, the Tribunal noted the nature of the appellant's activity related to maintaining a road and collecting toll fees for the NHAI. The Tribunal expressed a prima facie view that a detailed examination was necessary to determine the correct categorization of the service provided. The Tribunal acknowledged the lack of consistency in the application of the law by the Authorities, supporting the appellant's plea for dispensation of pre-deposit.

In conclusion, the Tribunal found merit in the appellant's argument regarding the need for a thorough examination of the matter and the inconsistent application of the law by the Authorities. The Tribunal, while considering the cited order by the Revenue, disposed of the stay application and remanded the appeal to the Commissioner (Appeals) for a hearing on its merits. The decision highlighted the importance of a fair and uniform approach in determining the leviability under the appropriate category of service, ensuring a just adjudication process.