2014 (2) TMI 1126 - AT - Service Tax

Waiver of pre-deposit - applicant is providing Air Travel Agent Service. They utilized a software system developed by M.S. Galileo and M/s. Amedus during the course of providing the said service - Business Auxiliary Service - Held that - Prime facie, the applicant activity appears to be marketing and promotion of services of M/s. Amedus and M/s. Galileo. It is seen that on an identical issue the Tribunal allowed the stay petition partly. The learned counsel for the applicant pleads that the demand is barred by limitation, which would be looked into at the time of final hearing of the appeal. As such, the appellant is directed to pre-deposit 25% of the tax - Conditional stay granted.

Summary

Issues:
Waiver of pre-deposit of tax under Proviso to Section 73(1) of the Finance Act, 1994 along with interest under Section 75 and penalty under Section 78 imposed on the appellant for utilizing software developed by M.S. Galileo and M/s. Amedus in the provision of Air Travel Agent Service.

Analysis:

The judgment addresses the application for waiver of pre-deposit of tax amounting to Rs.4,57,884 imposed on the appellant under the Proviso to Section 73(1) of the Finance Act, 1994, along with interest under Section 75 and penalty under Section 78. The case involves the utilization of software developed by M.S. Galileo and M/s. Amedus by the appellant in the provision of Air Travel Agent Service. The adjudicating authority held that tax is leviable on the incentives received by the appellant for using the software, categorizing it under Business Auxiliary Service. The demand for tax for the period from 2003-04 to 2006-07, along with penalty and interest, was confirmed and upheld by the Commissioner (Appeals).

The appellant's counsel argued that in a subsequent period, the Commissioner (Appeals) had set aside the adjudication order on both merits and limitation in the appellant's own case. Reference was also made to the Tribunal's order in the case of Kerala Publicity Bureau Vs Commissioner of Central Excise, where the Commissioner (Appeals) had followed the Tribunal's decision. The authorized representative reiterated the findings of the Commissioner (Appeals) and cited cases where the Tribunal had directed depositing a percentage of the service tax demanded in similar issues.

After hearing both sides, the Tribunal found merit in the submissions of the authorized representative. The Tribunal observed that the appellant's activity appeared to be related to marketing and promoting the services of M/s. Amedus and M/s. Galileo. Considering similar cases, the Tribunal directed the appellant to pre-deposit 25% of the tax within six weeks and report compliance by a specified date. Upon such deposit, the balance dues were to be waived, and recovery stayed during the pendency of the appeal. The issue of limitation raised by the appellant would be examined during the final hearing of the appeal.

In conclusion, the judgment granted partial relief to the appellant by allowing the waiver of the balance dues upon the pre-deposit of 25% of the tax amount within the stipulated time frame. The Tribunal's decision was based on the nature of the appellant's activity and previous rulings in similar cases, with the issue of limitation to be addressed in the final hearing of the appeal.