2014 (12) TMI 37 - HC - Service Tax

Waiver of pre deposit - Classification of services - business of packing parcels from parties in India handing to courier agencies - Business Support Service or not - Export of services - Held that - It is to be noted that after the matter was remanded for de novo consideration, the appellant despite opportunity being granted, after 11 months after remand, despite reminders by the Adjudicating Authority, they were unable to produce any records except for certificates from M/s. United Business Xpress India Pvt. Ltd and Professional International Couriers Pvt. Ltd., but failed to produce copies of the agreements or terms of arrangement between the parties concerned or copies of the invoices or details of payment of service tax by the principal courier considering the certificates produced from M/s. United Business Xpress India Pvt. Ltd. and Professional International Couriers Pvt. Ltd., the adjudicating authority confirmed the demand. The Tribunal rightly rejected the plea of the appellant to look into those documents at interim stage as they could be looked into only at the time when the appeal is finally heard. In such circumstances, we do not find any error in the order of the Tribunal. Accordingly, the order of the Tribunal is confirmed. - Decided against assessee.

Summary

Issues:
1. Tribunal's consideration of appellant's classification of activity under Business Support Service.
2. Tribunal's refusal to consider the issue of time bar and activity as a co-loader.
3. Tribunal's refusal to consider time-bar issue based on intentional evasion.
4. Tribunal's overlooking of evidence for activity falling under "Export of Service."

Analysis:

Issue 1:
The appellant challenged the Tribunal's decision regarding the classification of their activity as Business Support Service for the period from 1-5-2006 to 22-8-2007. They argued that a Board Circular clarified that charges received by a co-loader should not be included in the taxable service rendered by a courier agency. The Tribunal directed the appellant to pre-deposit a sum of Rs. 10 lakhs within eight weeks, leading to the current appeal.

Issue 2:
The Tribunal refused to consider the time bar issue raised by the appellant, which questioned the activity as a co-loader and the revenue's show cause notice. The appellant contended that non-payment of service tax based on a Board Circular would render the demand barred by limitation. However, the Tribunal did not find merit in this argument, leading to the current appeal.

Issue 3:
The appellant argued that the Tribunal erred in not considering the time-bar issue, which, according to statutory provisions, depends on the assessee's intentional evasion of service tax. They cited a previous case to support their claim. However, the Tribunal upheld its decision, emphasizing the lack of evidence produced by the appellant to substantiate their claims.

Issue 4:
The appellant presented evidence to establish that their activities fell under "Export of Service," thereby not attracting service tax. They argued that the Tribunal overlooked this evidence and made an incorrect finding regarding the disputed value of service tax. The Tribunal rejected the plea to consider fresh documents at an interim stage, leading to the dismissal of the appeal.

In conclusion, the High Court upheld the Tribunal's decision, confirming the order to pre-deposit Rs. 10 lakhs and extending the compliance deadline. The Court found no error in the Tribunal's judgment, ultimately dismissing the Civil Miscellaneous Appeal.