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TMI Blog2013 (8) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... time without considering the issue in detail in the light of statutory provisions, standard accounting principles and the difference between demurrage and wharfage and the reasons for the difference between the actual practice and the agreement and as to why the customer agreed to pay for the delay caused by the assesses. Waiver of pre deposit – Stay application – 30 Lakhs were ordered to be submitted – on such submission stay would be allowed - assesses had paid substantial portion of the amounts and entire amount of service tax in the case of rental income and some other aspects – Decided partly in favor of assesse. - Appeal Nos. 1839 & 1835/2012 - - - Dated:- 17-5-2013 - Mr. P.G. Chacko and Mr. B.S.V. Murthy, JJ. For the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come under the category of Renting of Immovable Property service . c) There is undervaluation and actual value of the services has not been shown in the ST-3 returns. 2.2. The demands in both the orders-in-original are as under: Order-in-original No. 12/2012-ST dated 22.03.2012 a) Rs. 2,31,32,929/- under SWH (Rs. 1,20,37,970/- appropriated in the order-in-original) b) Rs. 52,27,443/- under GTA as recipient c) Rs. 51,50,323/- under Section 73A (2006-07 2007-08) along with interest under Section 73B of the Act d) Penalty of Rs. 200/day up to 10.05.2008 under Section 76 e) Penalty of Rs. 200/day or Rs. 10000/- under Section 77 for failure to obtain registration for GTA service. f) Penalty of Rs. 2,90,59,963/- under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wharfage and transportation charges, it would be adequate for the purpose of consideration of eligibility of the appellants for waiver of pre-deposit and stay against recovery. 4. As regards demurrage wharfage charges, it was submitted that these are paid to the railway authorities on behalf of the customers when there is a delay in taking delivery of the goods from railway wagons. It was submitted that appellants act as pure agents and whatever actual amount paid by them to the railways is collected from the customers and for this purpose the learned counsel showed us a sample receipt issued by railways and corresponding payments received from their customers. However the learned Additional Commissioner (AR) would draw our attention t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the category of income and since it is being reimbursed it cannot be shown as expenditure also. Under these circumstances, it is not clear as to what exactly is the correct position with regard to demurrage and wharfage expenses. Needless to say the appellants have not been able to convince that the demand is totally wrong and at the same time without considering the issue in detail in the light of statutory provisions, standard accounting principles and the difference between demurrage and wharfage and the reasons for the difference between the actual practice and the agreement and as to why the customer agreed to pay for the delay caused by the appellants etc., it is not possible to arrive at a definite conclusion. 5. The second ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out a prima facie case in their favour. Taking note of the fact that the appellants have paid substantial portion of the amounts and entire amount of service tax in the case of rental income and some other aspects, and also taking note of the fact that the issues are arguable and need to be gone into considerable details which can be done only at the final stage of hearing, we consider that it would be appropriate if the appellant deposits an amount of Rs. 30 lakhs (Rupees Thirty lakhs only) as pre-deposit within 6 weeks from the date of receipt of this order. The compliance is to be reported to the Deputy Registrar on 05.08.2013 and Deputy Registrar is required to report to the Bench on 12.08.2013. Subject to deposit of the above amount, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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