Tribunal grants waiver of Rs. 78.83 Lakhs Service Tax & penalties. Applicant's payment history considered.

The Tribunal found in favor of the applicant, granting a total waiver of pre-deposit of Service Tax amounting to Rs. 78.83 Lakhs and penalties. The Tribunal determined that the applicant had already paid service tax for services rendered in both Odisha and Jharkhand during specific periods and established a prima facie case for the waiver. The Tribunal directed the applicant to deposit Rs. 1.00 Lakh within eight weeks, with the remaining dues waived and recovery stayed pending appeal proceedings to further examine the applicability of 'Business Auxiliary Service' and GTA services.

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Issues: Application for waiver of pre-deposit of Service Tax and penalty; Disputed demand for service tax; Scope of show cause notice; Prima facie case for waiver; Applicability of Business Auxiliary Service and GTA services.

In this case, the applicant sought a waiver of pre-deposit of Service Tax amounting to Rs. 78.83 Lakhs and an equal penalty imposed under Section 78, along with penalties under other provisions of the Finance Act, 1994. The advocate for the applicant argued that a significant portion of the demand related to service tax payments made during 2007-08 to 2009-10 for services under "Mining, Mineral oil or gas services" in Odisha, which were not considered when the business shifted to Jharkhand in 2010-2011. The advocate contended that the revenue's stance was incorrect. Additionally, the advocate challenged the balance amount of Rs. 15.00 Lakhs, highlighting that the demand was initially categorized as "Mining services" but confirmed under 'Business Auxiliary Service' and GTA services in the adjudication order, which was beyond the scope of the show cause notice and thus invalid.

The Revenue representative acknowledged that the Rs. 63.00 Lakhs had been paid during the relevant period to the Commissioner of Service Tax in Bhubaneswar. However, they argued that since part of the services were rendered in Jharkhand, duty was also required to be discharged there. Regarding the liability towards 'Business Auxiliary Service' and GTA Services, it was argued that the adjudicating authority did not overstep its bounds, as the applicant's claims for benefits and applicability under specific notifications were not accepted, leading to the confirmed demand.

The Tribunal found that the applicant had already paid service tax for services rendered in Odisha and Jharkhand during 2007-08 to 2009-10, and after moving to Jharkhand in 2010-11, they discharged service tax for services there as well. The Tribunal was not convinced by the Revenue's argument that the tax paid in Odisha could not be considered towards their liability in Jharkhand. Therefore, a prima facie case for total waiver of pre-deposit was established. The Tribunal also noted that the order did not deviate from the case record, and the applicability of 'Business Auxiliary Service' and GTA services would be further examined during the appeal proceedings based on evidence. Consequently, the applicant was directed to deposit Rs. 1.00 Lakh within eight weeks, with the remaining dues waived and recovery stayed during the appeal process.

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