2010 (6) TMI 299 - AT - Service Tax

Clearing and forwarding services - short-payment of service tax on handling charges as found on a comparison of the total handling charges realised by the assessee for the year 2001-02 and those mentioned in their ST-3 returns for the said year - waiver of pre-deposit and stay of recovery in respect of the impugned demands.

Summary

Issues:
1. Waiver of pre-deposit and stay of recovery sought by the appellant regarding service tax and education cess demanded for the period April 2001 to March 2006.
2. Inclusion of 'facility charges' in the taxable value of 'clearing and forwarding services' rendered by the appellant.
3. Alleged short-payment of service tax on 'handling charges' for the year 2001-02.

Analysis:
1. The appellant sought waiver of pre-deposit and stay of recovery for the demanded amount. A significant portion of the demand was related to the inclusion of 'facility charges' in the taxable value of services rendered to a customer. The appellant argued that the one-time payment for the facility provided to the customer should not be considered part of the taxable value of the services. Additionally, the appellant contended that there was no suppression of facts in the filed returns, and the show-cause notice was issued beyond the normal period of limitation. The Tribunal considered the arguments and granted the waiver of pre-deposit and stay of recovery for the disputed demands.

2. There was confusion regarding the nature of charges mentioned in the show-cause notice and the Commissioner's order. The show-cause notice alleged short-payment of service tax on 'handling charges,' while the Commissioner's order clarified that the 'facility charges' were related to specific services provided by the appellant, falling within the scope of clearing and forwarding agent's services. The order quantified the tax for the relevant period but did not find any suppression of facts to evade tax payment. The Tribunal noted the lack of explicit evidence supporting the revenue's case, indicating a prima facie case for the appellant. Consequently, the Tribunal granted the waiver of pre-deposit and stay of recovery for the disputed demands.

3. The confusion between 'facility charges' and 'handling charges' for the same period led to discrepancies in the allegations made in the show-cause notice and the Commissioner's order. While the Commissioner's order clarified the nature of charges and their taxability, the show-cause notice inaccurately referred to alleged short-payment of service tax on 'handling charges.' The Tribunal considered this discrepancy and the absence of evidence of intent to evade tax payment. As a result, the Tribunal granted the waiver of pre-deposit and stay of recovery for the disputed demands, emphasizing the lack of a clear case for the revenue based on the available records.