2013 (9) TMI 628 - AT - Service Tax

Support services of business or commerce - Whether support services of business or commerce envisage services rendered by the appellant - Held that - services have to be rendered in relation to the business or commerce. In our considered view, prima facie, Government of Karnataka does not render any services which are in the form of business or commerce at least in respect of the fees which has been collected by the appellant. In our considered view, appellant has made out a strong prima facie case for complete waiver of the amounts involved. Accordingly, applications for waiver of pre-deposit of the amounts involved are allowed and recovery thereof stayed till the disposal of appeals - Decided in favour of assessee. Stay application - Held that - the department s stay petition against the impugned order is not maintainable for the simple reason that there is no demand that needs to be waived - when the departmental authorities have taken two different views on the very same issue in respect of the same assessee, it is also an additional ground made out by the assessee for waiver of pre-deposit of the amounts involved in earlier stay petitions - stay granted.

Summary

Issues:
Stay petitions for waiver of service tax, penalties under different sections, and periods involved.

Analysis:
1. The appellant filed four stay petitions seeking waiver of amounts related to service tax and penalties under various sections for different periods. The lower authorities held the appellant liable for service tax under the category of 'support services of business or commerce.'

2. The appellant argued that the services provided, such as entry fees, berthing fees, wharfage charges, and landing charges for ports, do not fall under the definition of 'support services of business or commerce.' The absence of a specific definition for 'Business Support Services' supporting the imposition of service tax on the appellant's services was highlighted.

3. The departmental representative contended that the services rendered by the appellant to the Government of Karnataka, supporting its operations, are subject to service tax. The definition of 'support services of business or commerce' under Section 65(104c) was examined, emphasizing that such services must be related to business or commerce.

4. Upon reviewing the submissions and records, it was observed that the services provided by the appellant to the Government of Karnataka do not align with the definition of 'support services of business or commerce.' The appellant successfully demonstrated a strong prima facie case for the complete waiver of the amounts in question, leading to the approval of the applications for waiver and the stay of recovery pending appeal disposal.

5. Additionally, it was noted that the department had filed a stay petition, which was deemed not maintainable as the first appellate authority had already set aside the order confirming the service tax liability under 'Business Support Service.' The inconsistent views taken by the department on the same issue for the same assessee further supported the appellant's case for waiver of pre-deposit amounts in the earlier stay petitions.

6. Consequently, the department's stay petition was dismissed for lacking merit, while the appellant's stay petitions were granted, allowing the waiver of the amounts in question. The judgment was pronounced in open court, concluding the legal proceedings.