2009 (11) TMI 489 - AT - Service Tax

Waiver of pre-deposit - issue involved is regarding service tax liability to the assessee on the storage and warehousing service - the amount has been confirmed on the advance received for which there was no service rendered by the assessee - There is no denial of the assessee that they have not provided the services or storage and warehousing charges Held that - we direct the appellant to pre-deposit.

Summary

Issues involved:
Service tax liability on storage and warehousing service rendered by the assessee during 2005-06.

Analysis:

1. Time-barred show-cause notice and authority issuing it:
The counsel for the assessee argued that the show-cause notice issued on 9-10-2006 was time-barred. Additionally, it was pointed out that the notice was issued by the Additional Commissioner, whereas during that period, only the Assistant Commissioner or Deputy Commissioner of Central Excise had the authority to issue such notices. The contention was also raised that the confirmed amount was based on advance received without corresponding services being rendered by the assessee.

2. Appeal by the revenue and Commissioner (Appeals) decision:
The Senior Departmental Representative (SDR) contended that the Commissioner (Appeals) correctly upheld the order, but the revenue had also filed a stay petition for the amounts set aside by the Commissioner (Appeals).

3. Judicial review and decision on stay petitions:
Upon reviewing the submissions and records, the Tribunal found that the revenue's stay petition lacked merit as the Commissioner (Appeals) had already set aside the service tax not charged by the assessee. Therefore, the revenue's stay petition was dismissed. Regarding the assessee's stay petition, it was noted that the services of storage and warehousing were indeed provided by the assessee, and the interpretation of charges by the lower authorities was deemed lawful. The issue of time bar was also addressed, with the Tribunal highlighting the change in law following a Supreme Court decision overturning the precedent relied on by the lower authorities. Consequently, the Tribunal directed the appellant to pre-deposit a specified amount within a set timeframe, with the condition to pre-deposit the balance amount waived subject to compliance. Recovery of the pre-deposited amount was stayed pending the appeal's disposal.

This detailed analysis covers the various legal issues raised in the judgment, including the validity of the show-cause notice, authority to issue such notices, decisions by the Commissioner (Appeals), and the Tribunal's rulings on the stay petitions filed by both the revenue and the assessee.