2016 (4) TMI 729 - AT - Service Tax

Waiver of pre-deposit - Demand of service tax for GTA service under reverse charge basis - Washing and beneficiation of coal before delivering to the buyers - Applicant pay freight on arranged transport and recovere on full reimbursement from the buyers of coal - Held that - the applicant has strong arguable case against the tax liability. The consignees (buyers of coal) have claimed to have been discharged the service tax though a full verification of facts of such assertion is not before us. As the prima facie case is in favour of the applicant the waiver of pre-deposit of service tax, interest and penalty is granted. - Stay and waiver granted

Summary

Issues:
Waiver of pre-deposit of confirmed service tax, penalty, and additional penalty in terms of the impugned order dated 31/3/2014.

Analysis:
The case involved a coal washery liable to service tax under the category of Business Auxiliary Service (BAS) for transporting coal from collieries to the washery for beneficiation. The Department claimed the washery was liable to pay service tax for Goods Transport Agency (GTA) services under reverse charge basis. The original Authority dropped the proceedings, but the Tribunal remanded the matter for a fresh decision, leading to the impugned order confirming the demand and penalties.

The applicant argued that the buyers of coal were the real consignees, and the washery acted as an intermediary/agent between the seller and buyer, arranging transport and paying freight reimbursed by the buyers. The applicant contended that the buyers, not the washery, should be considered liable for service tax under Rule 2(1)(d)(v) of Service Tax Rules, 1994.

The Tribunal considered the facts and found that the coal was purchased by buyers from collieries, with delivery orders indicating the buyers as consignees. The washery processed the coal before delivering it to the buyers, acting as an intermediary. The Tribunal noted that the washery had a strong arguable case against tax liability, especially considering the reimbursement of freight by the buyers. Thus, the Tribunal granted the waiver of pre-deposit of service tax, interest, and penalty until the appeal's disposal, allowing the application for stay.

This judgment highlights the importance of analyzing the roles and responsibilities of parties involved in a transaction to determine the liability for service tax under specific categories like GTA services. The Tribunal's decision to grant a waiver of pre-deposit was based on the prima facie case presented by the applicant, emphasizing the need for a thorough examination of evidence and legal provisions in tax disputes.