2011 (9) TMI 824 - AT - Service Tax

Tribunal Waives Predeposit & Stays Recovery for Appellant Challenging Service Tax Demand

The Tribunal granted relief to the appellant by waiving predeposit and staying recovery in relation to the service tax demand under the 'Club or ... Waiver of pre-deposit - demand of service tax is under the head ‘Club or Association Service' - appellant is Employees Welfare Trust constituted by M/s. Infosys Technologies Ltd. The impugned demand of tax is on the membership fee collected by the trust from the employees of the said company – Held that:- show-cause notice was issued on the basis of an audit report which was prepared in 2008. There was no manner of investigation prior to or after that date. The appellant objected to the audit objections by submitting that they were not liable to pay service tax prior to the date on which the relevant explanation was added to Section 65 of the Finance Act, 1994. Counsel has also been able to bring on record certain decisions which would go to support the plea of bona fide belief which the appellant is said to have maintained during the material period regarding liability to pay service tax under 'Club or Association Service'. The show-cause notice in question was issued after a lapse of three years since the relevant period. Prima facie , the appellant has made out a case against the demand of service tax on the ground of limitation. waiver of predeposit granted Issues involved: Waiver of predeposit and stay of recovery in respect of service tax and penalties imposed under various provisions of the Finance Act, 1994, specifically related to the demand of service tax under the head 'Club or Association Service' for a particular period.Analysis:The appellant, an Employees Welfare Trust constituted by a company, sought waiver of predeposit and stay of recovery regarding service tax and penalties imposed under the Finance Act, 1994. The impugned demand of service tax was related to the membership fee collected by the trust from the company's employees during a specific period. The appellant argued on the grounds of merits and limitation. The show-cause notice invoking the extended period of limitation was issued based on an audit report prepared in 2008, alleging suppression of material facts. The appellant contended that they were not liable to pay service tax under 'Club or Association Service' before the insertion of an explanation to Section 65 of the Finance Act, 1994, effective from 1/5/2006. The appellant maintained a bona fide belief regarding their liability, supported by legal judgments and the Department's previous actions in similar cases.The Tribunal noted that while the appellant cannot deny liability to pay service tax under 'Club or Association Service' presently, they had established a prima facie case against the demand based on limitation. The show-cause notice was issued three years after the relevant period without any investigation before or after the audit report in 2008. The appellant consistently maintained their position on the limitation aspect, supported by legal arguments and decisions. Considering the circumstances, the Tribunal granted waiver of predeposit and stay of recovery for the amounts adjudged against the appellant, acknowledging their case against the demand of service tax on the ground of limitation.In conclusion, the Tribunal granted relief to the appellant by waiving predeposit and staying recovery in relation to the service tax demand under the 'Club or Association Service' for the specified period, based on the appellant's prima facie case against the demand on the ground of limitation, supported by legal arguments and previous Departmental actions in similar cases.