2008 (5) TMI 124 - AT - Service Tax

Tribunal Waives Pre-deposit & Stays Recovery in Service Tax Appeal emphasizing Intent & Suppression

The Tribunal granted a waiver of pre-deposit and stayed recovery pending appeal resolution in a case involving alleged non-payment of Service Tax for ... Allegation is that assessee did not pay the Service Tax in respect of the activity covered under the category of “Business Auxiliary Services” with various banks - no finding rendered with regard to intention to evade duty - assessee is already covered under the category of “Authorised Service Station Services”. They have been filing returns also - matter can be looked into in final stage - stay application is allowed - There shall be no recovery even after expiry of 180 days Issues: Allegation of contravening provisions of Sections 68 and 70 of the Finance Act regarding Service Tax payment for 'Business Auxiliary Services' and intention to evade duty.The judgment deals with an appeal where the appellants, holders of Service Tax Registration under 'Authorized Service Station Services,' were also providing taxable services under 'Business Auxiliary Services.' The allegation was that they contravened Sections 68 and 70 of the Finance Act by not paying Service Tax for the latter activity, evading tax. The appellants claimed a time bar defense, stating they were already filing returns for their authorized services. The Counsel argued no intention to evade duty, citing agreements with banks not falling under 'Business Auxiliary Services.' The SDR contended that lack of information provided to the department indicated an intention to evade duty.The Tribunal observed that the appellants were already registered for one category of services and filing returns. They emphasized the need for a specific finding on intention to evade duty and the elements of suppression in the order. Not finding such a finding in the impugned order, the Tribunal granted a waiver of pre-deposit and stayed recovery until the appeal's disposal. They highlighted that recovery should not occur even after 180 days based on precedents from higher courts and tribunals.In conclusion, the judgment addressed the issue of alleged non-payment of Service Tax for 'Business Auxiliary Services' and the contention of intention to evade duty. The Tribunal stressed the importance of a clear finding on intent and suppression of facts, ultimately granting a waiver of pre-deposit and stay on recovery pending appeal resolution, citing the small amounts involved and legal precedents.