Custom, Excise & Service Tax Tribunal
V. Narasimha Rao vs Commissioner Of Central ... on 17 March, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No . 20344 / 2014 Application(s) Involved: ST/Stay/993/2012 in ST/1422/2012-DB Appeal(s) Involved: ST/1422/2012-DB [Arising out of Order-in-Appeal No. 71/2012 dated 24/02/2012 passed by the Commissioner of Customs, Central Excise & Service Tax(Appeals) Hyderabad] V. NARASIMHA RAO S/o.SESAIAH, H.NO.9-1-368, OPP.SURAKSHA BUS STAND, BANDARUGUDEM 507 117, MANUGURU, KHAMMAM DIST. Appellant(s) Versus Commissioner of Central Excise,Customs And Service Tax - HYDERABAD-III OPP LB STADIUM ROAD, BASHEERBAGH, HYDERABAD, ANDHRA PRADESH-500004 Respondent(s)
Appearance:
None For the Appellant Mr. R. Gurunath, A.R. For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 17/03/2014 Date of Decision: 17/03/2014 Order Per : B.S.V.MURTHY The appellant has filed stay application for waiver of predeposit and stay of recovery of the impugned demands.
2. Nobody is present on behalf of the appellant. However, after careful consideration of the records and hearing learned A.R., we have found this case fit for summary disposal. Accordingly after dispensing with predeposit, we take up the appeal.
3. Department had issued show-cause notice to the appellant demanding service tax along with interest under the head rent-a-cab service and proposing penalties under various provisions of the Finance Act 1994. The demands were contested by the appellant. The dispute was adjudicated by the original authority whose order went against the appellant. Aggrieved by the order of the original adjudicating authority, the appellant preferred an appeal to the Commissioner (Appeals). They also applied for waiver of predeposit. The appellate authority required the appellant to predeposit 10% of the service tax for the purpose of hearing the appeal. As the appellant did not make predeposit within the prescribed period, the Commissioner (Appeals) rejected the appeal on the sole ground of non-compliance with Section 35 F ibid without examining the merits of the case. The appeal before us is directed against such order of the Commissioner (Appeals).
4. On a careful consideration of the records and hearing learned A.R., we have found prima facie case for the appellant on the strength of the stay order passed by this Bench viz. stay order No. 1361-1384/2012 dated 09/08/2012 in a batch of appeals, ST/2895-2902, 2920-2932, 2935,2964, 2965/2011. The facts of the present case are similar to those cases considered in the above stay order. The appellant has made available their buses to the APSRTC under agreement wherein the APSRTC would ply the buses on predetermined routes covered by stage carriage permits held by the owner, with a time schedule fixed by the APSRTC, and the bus owner would provide the services of drivers to the Corporation and would be paid by the corporation, hire charges per km. On these and allied facts, a prima facie view taken in the cited Stay Order to the effect that the activity of the bus owners could not be classified as rent-a-cab service. Based on this view, waiver and stay were granted in those cases, The same view has to be taken in this case also. ln other words, the present appellant has made out a prima facie case against the demand of service tax under the head 'rent-a-cab service. On this basis, the lower appellate authority should dispense with predeposit and dispose of the assessees appeal (filed against orders-in-original) on merits without insisting on any predeposit.
5. Accordingly, we set aside the impugned order and allow the appeal by way of remand with a direction to the Commissioner (Appeals) to dispose of the assessees appeal (filed against (Order-in-Original) on merits without insisting on any predeposit. Needless to say that the appellant must be given a reasonable opportunity of being heard and speaking order should be passed.
(Order dictated and pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER pnr