2009 (1) TMI 47 - HC - Service Tax

Petitioner submitted that the tribunal has erred in rejecting the application for complete waiver of pre-deposit - Once the tribunal has granted full waiver in two similarly situated cases, it would not be proper to take a different view and deny full waiver of pre-deposit. Accordingly, we direct waiver of pre-deposit of the amounts in question held that tribunal shall decide the appeal independently on its own merits and in accordance with law

Summary

Issues:
Challenge to order of Customs, Excise & Service Tax Appellate Tribunal regarding predeposit for appeal under Finance Act, 1994.

Analysis:
The petitioners, an ex-servicemen company, challenged an order by the Customs, Excise & Service Tax Appellate Tribunal directing them to deposit a sum for hearing their appeal against a service tax order. The key issue was whether the petitioners' activities fell under the definition of "cargo handling service" under the Finance Act, 1994, making them liable for service tax. The Assistant Commissioner had found their services fell under this category. The petitioners sought a waiver of predeposit, arguing their activities did not match the definition. They cited precedents where similar waivers were granted by the tribunal. The respondents contended that the petitioners failed to establish undue hardship required for the waiver. They referred to a Supreme Court judgment emphasizing the need to balance undue hardship and revenue interests in such cases. The Court noted discrepancies in the respondents' arguments and previous tribunal decisions where waivers were granted in similar cases. The Court highlighted the importance of establishing a prima facie case for waiver and referred to the Supreme Court's stance on interim orders in cases with weak demands. Consequently, the Court set aside the order, directing a waiver of predeposit and stay on recovery pending appeal. The Court clarified that its observations were preliminary, and the tribunal would decide the appeal independently.

This detailed analysis covers the key issues involved in the legal judgment, highlighting the arguments presented by both parties and the Court's reasoning leading to the final decision.