2007 (11) TMI 240 - AT - Service Tax

Tribunal grants waiver & stay in ATM services classification case, citing precedents & expediting hearing.

The Tribunal granted waiver of pre-deposit and stay of recovery for the appellants in a case concerning the classification of services related to ATM ... Composite contract for installation and commissioning of ATMs in banks – assessee contend that contract was composite and the same was not to be brought within the ambit of Commissioning or Installation Services - plea of time bar - this Bench has decided the case in assesse’s favour in case of Daelim Industrial Co. Pvt., which has been confirmed by SC – in view of some other decisions, we allow the stay application granting waiver of pre-deposit and staying its recovery Issues:1. Whether the activities related to installation and commissioning of ATMs fall under 'Commissioning or Installation Services' for Service Tax purposes.2. Whether the activities of Cash replenishment and Caretakers Services are covered under 'Business Auxiliary Services'.3. Whether the appellants are required to pre-deposit the Service Tax amount along with penalties.Analysis:Issue 1:The appellants were required to pre-deposit a significant Service Tax amount along with penalties for installation and commissioning of ATMs. The Commissioner raised demands for Service Tax under 'Commissioning or Installation Services'. The appellants argued that the contract was composite and not covered under this category. They also claimed that prior to a certain date, they were not liable for the tax. The Commissioner disagreed and confirmed the demands invoking a larger period.Issue 2:The Chartered Accountant for the appellants cited various judgments, including a Tribunal ruling affirmed by the Apex Court, to support their contention. They highlighted a similar case where waiver of pre-deposit was granted by the Madras Bench. The Tribunal found the service in question not taxable before a specific date and granted waiver of pre-deposit and stay of recovery for the tax and penalty amounts. The case was directed for an expedited hearing due to the high stakes involved.Issue 3:The Revenue opposed the waiver of pre-deposit, arguing that the contract could be vivisected for charging Service Tax for installation. They contended that the citations provided by the appellants were distinguishable. However, the Tribunal, after considering the precedents and the facts of the case, allowed the stay application, granting waiver of pre-deposit and staying the recovery. The matter was scheduled for a final hearing on a specified date due to the substantial amount involved.In conclusion, the Tribunal granted waiver of pre-deposit and stay of recovery for the appellants based on the cited judgments and the nature of the case. The appeals were directed for an expedited hearing, considering the significant amount at stake. The Tribunal's decision was in line with judicial discipline and previous rulings, ensuring a fair resolution of the issues raised.