2012 (7) TMI 347 - AT - Service Tax

Tribunal Denies Waiver due to Lack of Proof, Allows Partial Relief with Pre-deposit Requirement

The Tribunal denied the waiver of the demand of Rs.3,57,801/- as the applicant failed to prove that outward transportation cost was part of the price. For ... Waiver of amount of Service Tax, interest and penalty – denial of credit of Service Tax paid on outward transportation of the goods - applicant relied upon the Board Circular dated 23/08/2007 whereby it has been clarified that in case the outward freight is part of price, the credit of service tax paid in this regard is admissible – Held that:- credit in respect of Service Tax on outward transportation is admissible if the freight is part of price. In absence of any evidence to show that the freight is part of the price, applicant had not made out a case for total waiver of the demand. Demand of the service tax – BAS - appellant claimed the benefit of Notification No.21/05-ST dated 7/6/05 – Held that:- applicants are also undertaking the activity in respect of other goods also such as petrdidish, dental powder, medical equipments, semi-conductors, irradiation of O ring, LDPE Gaskets etc and these items are not covered under the Notification No.21/05-ST. Applicant has not made out a total waiver of demand Regarding laying of cables – Held that:- contracts are for laying the cables and the Board vide Circular dated 24/5/10 clarified that laying of cables are not liable to service tax. In favor of assessee Issues involved:Waiver of Service Tax, interest, and penalty; Credit of Service Tax on outward transportation; Liability for Business Auxiliary Service; Exemption for specific activities under Service Tax Rules; Interpretation of Board Circulars; Admissibility of new pleas during appeal; Pre-deposit requirements under Section 35 of the Central Excise Act.Analysis:1. Demand of Rs.3,57,801/-:The applicant sought a waiver of this amount, contending that the outward transportation cost is part of the price, making them eligible for credit as per a Board Circular. However, the Tribunal found no evidence supporting this claim, as the applicant failed to demonstrate that the freight was indeed part of the price. Citing a precedent, the Tribunal ruled that without such evidence, the applicant did not establish a case for a total waiver of this demand.2. Demand of Rs.54,01,842/-:Regarding this demand, the applicant argued that the amendments to the definition of business auxiliary service were applicable from a specific date, exempting certain activities. The Revenue countered that the applicant admitted tax liability for services provided post-amendment but failed to challenge the taxability of services pre-amendment. The Tribunal noted that the applicant's activities extended beyond the exempted categories, leading to a rejection of the total waiver request for this demand.3. Demand of Rs.22,85,484/-:The demand related to the activity of laying cables, which the applicant claimed was exempt based on a Board Circular. While this plea was not raised earlier, the Tribunal acknowledged a strong case for the applicant on this issue, considering the nature of the activity. Despite the delay in presenting this argument, the Tribunal found merit in the applicant's position, indicating a potential exemption from service tax for this specific activity.4. Pre-deposit Requirement and Legal Precedents:The Tribunal referenced a High Court decision outlining principles for determining pre-deposit requirements under Section 35 of the Central Excise Act. Emphasizing compliance with these guidelines, the Tribunal directed the applicant to deposit a specified amount within a set timeframe to avail partial waiver of the remaining Service Tax, interest, and penalty during the appeal process. This decision aligned with the legal framework and precedents governing such cases, ensuring procedural adherence and financial obligations.In conclusion, the Tribunal's judgment addressed various issues concerning Service Tax demands, credit eligibility, exemption claims, and procedural requirements. By analyzing each aspect in detail and considering legal interpretations and precedents, the Tribunal provided a comprehensive decision that balanced the applicant's claims with statutory provisions and case law, ultimately guiding the parties on the necessary steps for compliance and appeal resolution.