The Airlines Industry represented to the authorities that they were receiving payments in Indian currency and the new amendment would cause hardship to the exporters and to them. Consequently the exemption under Notification 29/2005-S.T., dated 15-7-2005 was issued restoring exemption to such services from Service Tax as was available in Notification No. 28/2004-S.T., dated 17-9-2004. The additional ground taken in the application for that purpose is that notification 29/2005-S.T., dated 15-7-2005 is only in nature of a clarification and hence it should apply retrospectively.
Facts and circumstances of the case suggests that the appellant has adopted a novel way of splitting the consideration with nomenclature of reimbursement of expenses. Deliberate splitting is not possible to be ruled out when splitting is not intended by law. Once splitting is attributable to a motive, the appellant cannot get any shelter under the purview of law.
In the entire scenario, we note that admittedly, a wrong order got issued (as the mistake happened in the hands of Steno) without noticing the facts of the present case, the replacement of said order cannot be considered to be a review of the same. The entire order, which got issued was a mistake inasmuch as the same does not relate to the facts of the present case except that the reference of Appeal No. and impugned order-in-appeal match in the preamble to those in case under consideration making it look as if the present order relates to the appeal of M/s. Paramount Communication.
As regards fumigation charges, a specialized process for cleaning the containers, the Commissioner has allowed the claim on the ground that the fumigation is mandatory when agricultural products are exported and such fumigation can be done only by the Government approved agencies. Very same issue had come up before this Tribunal in the case of Ramdev Food Products (P.) Ltd. v. CCE [2012] 21 taxmann.com 410 (Ahd – CESTAT), wherein the Tribunal has taken a view that notification prescribed a condition that there has to be a written agreement between the buyer and the seller about testing and analysis of the product, if the service has been received without written agreement, the benefit of refund would not be admissible. In this case, fumigation is a specialized cleaning process, requiring to satisfy the condition of notification of written agreement between buyer and seller and ld. Counsel for the respondent fairly agree that they do not have a written agreement.
In the instant case the appellant is not rendering such service on commission basis. The amount paid by the publications is a fixed retainer fee on monthly basis. Thus by the above Circular, the appellant’s activity is not taxable under Advertising Agency during the disputed period. The Government intends to exclude print media from the purview of Service tax. In case of advertising services also, the circulars clarifying that the sale of space for advertising would not be taxable under the category of advertising services were primarily meant to save the print media from the burden of tax. In the services of sale of space of time for advertisement, a specific exclusion has been made to this effect. “Sale of space or time for Advertisement Services” was brought into the Service tax net w.e.f. 1-5-2006 only. The disputed period in the instant case is prior to that. Thus, the activity of the appellant during the disputed period is not taxable under Advertising Agency Service and Sale of Space or time for Advertisement Services too.
In this case, the appellants had Calculated and paid the entire amount of credit with interest and on finding that there was a short-fall in payment, the proviso of Sec.73 (3) of the Finance Act, 1994 would come into play and, therefore, the concerned Central Excise Officer should have informed the assessee instead of issuing show-cause notice. Though the Revenue had one year time for issue of show-cause notice, instead of intimating the appellants who would have been willing to deposit the amount without any notice, they have issued show-cause notice in this case. The appellant was not disputing the merit of the stand taken by the revenue. Show-cause notice has been issued which in accordance with the provisions of Sec.73 (3) of the Finance Act, 1994, need not have been issued at all.
Appellants had procured iron ores during the period April 2007 to March, 2009, which were used in the manufacture of their final product, namely, sponge iron. In bringing the said iron ores, which were used as input, the appellants had paid service tax on GTA services. Consequently, they had availed cenvat credit on the amount of service tax paid on GTA service as the same satisfies the definition of input service prescribed under Section 2 (I) of Cenvat Credit Rules, 2004. During the course of manufacture of sponge iron, the said iron ore was subjected to the process of screening and after completion of the said process, iron ore fines were generated.
Vide stay order No.ST/S/177/12-Cus dated 8.2.2012 the appellant was directed to deposit an amount of Rs. 30 lakh. Subsequently, the matter came up for ascertaining compliance and as the appellant expressed his desire to file modification application, the matter was adjourned and listed on 20.7.2012.
In the case of activities sought to be classified under site formation service our prima facie view is that this activity is classifiable as mining activity and liable to service tax only from 1-6-2007 and such tax is being paid. Demand of service tax under site formation service does not appear to be prima facie maintainable in this case where during the relevant period the definition did not cover the activity specifically and later a specific entry is introduced to cover the activity. So at this prima facie stage, we find that the appellants have made out a strong case for waiver of pre-deposit of dues arising from the impugned order for admission of appeal. We order so and there shall be waiver on collection of such dues during the pendency of the appeal.
It is the contention of the applicant that they have paid the amount in excess in the month of April 2004 and May 2004. We are therefore of the view the fact regarding excess payment is required to be verified by the Commissioner (Appeal). Accordingly we waive the pre-deposit and remand the case back to Commissioner for decision on merit after ascertaining the excess deposit of Rs. 14,451/- as service tax as contended by the applicant. Stay petition as well as Appeal are disposed of by way of remand.
