2013 (8) TMI 602 - AT - Service Tax

Tribunal denies stay request, appellant must pre-deposit service tax; appeal delay condoned. Liability upheld, claims unsubstantiated.

DA ENTERPRISES Versus COMMISSIONER OF CENTRAL, EXCISE, PUNE-III

The Tribunal denied the appellant's request for a stay and directed them to make a pre-deposit of the service tax amount. The delay in filing the appeal ... Condonation of delay - Held that:- delay is that due to an accidental fall from the motorbike, on account of which the appellant sustained injuries. Considering the reasons stated as satisfactory, we condone the delay in filing the appeal. Manpower Supply Agency or Security Agency - in terms of Notification No. 8/2005-ST they are exempted from payment of service tax - Held that:- Notification No. 08/2005-ST grants exemption on job work carried out by service provider on the materials supplied by the clients. Such job work envisages processing of material supplied by the clients. Shifting of raw material or cleaning factory premises, by no stretch of imagination, can be considered as job work, so as to be eligible for the benefit of Notification No. 08/2005-ST. Therefore, the appellant's submission in this regard lacks merit. The appellant has also not pleaded any financial hardship in the appeal memorandum. Waiver of pre deposit - Held that:- Appellant has not made out any case for grant of any stay - appellant to make a pre-deposit of entire amount of service tax confirmed - On such compliance, pre-deposit of balance of dues adjudged against the appellant shall stand waived and recovery, thereof stayed during the pendency of the appeal. Issues:- Condonation of delay in filing the appeal- Service tax liability of the appellant- Violation of principles of natural justice- Eligibility for exemption under Notification No. 8/2005-ST- Financial hardship pleaCondonation of Delay:The COD application sought condonation of a 33-day delay in filing the appeal due to the appellant's accidental injuries sustained from a motorbike fall. The Tribunal considered the reasons satisfactory and condoned the delay.Service Tax Liability:The appellant, a registered entity under specific categories, was found liable to pay service tax under 'Manpower Supply Agency' and 'Security Agency' services for the period 2007-08 to 2009-10. The total liability pending was Rs. 53,10,390/- as per records. Despite admitting non-discharge of service tax liability, the appellant claimed non-receipt of service tax from some customers and alleged giving cash to a Tax Consultant, who denied receiving any payment.Violation of Principles of Natural Justice:The appellant contended that the adjudicating authority violated natural justice principles by not considering their contentions and denying the opportunity to cross-examine. However, the Tribunal noted that the appellant failed to avail multiple personal hearing opportunities granted and did not provide substantial evidence to support their claims.Exemption under Notification No. 8/2005-ST:The appellant argued for exemption under Notification No. 8/2005-ST, claiming eligibility based on the type of activities conducted. However, the Tribunal found the activities of the appellant, such as shifting raw materials and housekeeping, did not qualify as job work under the notification, thus lacking merit in their submission.Financial Hardship Plea:The appellant did not plead financial hardship in the appeal memorandum, which could have potentially influenced the decision on granting a stay. The Tribunal emphasized that the appellant failed to establish a case for a stay and directed them to make a pre-deposit of the entire confirmed service tax amount within a specified period.Conclusion:The Tribunal, after considering submissions from both parties, found no grounds for granting a stay and directed the appellant to make a pre-deposit of the service tax amount. The appellant's arguments regarding natural justice violations and exemption under Notification No. 8/2005-ST were deemed unsubstantiated, leading to the decision against granting a stay.