2014 (8) TMI 552 - AT - Service Tax

Waiver of pre-deposit - Rent a cab service - appellant has made available their buses to the APSRTC - Held that - The appellant has made available their buses to the APSRTC under agreement wherein the APSRTC would ply the buses on predetermined routes covered by stage carriage permits held by the owner, with a time schedule fixed by the APSRTC, and the bus owner would provide the services of drivers to the Corporation and would be paid by the corporation, hire charges per km. On these and allied facts, a prima facie view taken in the cited Stay Order to the effect that the activity of the bus owners could not be classified as rent-a-cab service. Based on this view, waiver and stay were granted in those cases, The same view has to be taken in this case also. - stay granted - Matter remanded back.

Summary

Issues:
- Stay application for waiver of pre-deposit and stay of recovery of impugned demands.
- Rejection of appeal by Commissioner (Appeals) due to non-compliance with Section 35 F ibid.
- Prima facie case for the appellant based on previous stay order and classification of activity as rent-a-cab service.

Analysis:
1. The appellant filed a stay application seeking waiver of pre-deposit and stay of recovery of the impugned demands. Despite the absence of the appellant, the Tribunal decided to proceed with the case after considering the records and hearing the learned A.R. The Department had issued a show-cause notice demanding service tax for rent-a-cab service, along with interest and penalties under the Finance Act 1994. The original authority ruled against the appellant, who then appealed to the Commissioner (Appeals) while also applying for pre-deposit waiver. The Commissioner (Appeals) required a 10% pre-deposit for hearing the appeal, but as the appellant failed to comply, the appeal was rejected solely on the grounds of non-compliance with Section 35 F ibid without assessing the case's merits.

2. Upon careful consideration, the Tribunal found a prima facie case for the appellant based on a previous stay order issued by the Bench in similar cases. The appellant had provided buses to APSRTC under an agreement, where the buses were operated by APSRTC on predetermined routes with drivers provided by the owners. The Tribunal opined that this activity did not fall under the category of rent-a-cab service. Therefore, the Tribunal concluded that the appellant had established a prima facie case against the service tax demand. As a result, the lower appellate authority was directed to dispense with pre-deposit and review the appellant's appeal on its merits without requiring any pre-deposit.

3. Consequently, the impugned order was set aside, and the appeal was allowed by remand with instructions for the Commissioner (Appeals) to adjudicate the appellant's appeal against the Order-in-Original on its merits without insisting on any pre-deposit. The Tribunal emphasized that the appellant must be granted a fair opportunity to present their case, and a reasoned order should be issued after due consideration. The judgment was dictated and pronounced in an open court session.