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2014 (12) TMI 166 - AT - Service TaxWaiver of pre-deposit - Revenue found that the appellants were rendering many other services on which they were not paying service tax - Valuation of services - Whether incentives and discounts will form part of value of services under Business Auxiliary Service - Held that:- In the case of consideration received for freight we are of the prima facie view that ocean freight was not liable to service tax. While there are specific entries in Finance Act, 1994 levying tax on transportation of goods by road, rail, aircraft, pipeline, etc., there is no entry levying tax on transportation by sea. It has to be reasonably presumed that this is kept outside the tax net and it cannot be taxed under a general entry like business support services. Further it appears that such services are rendered in respect of export cargo. It appears that the expression “aircraft operator” as defined in Finance Act, 1994 may cover any person who may not be having an aircraft also. But in the case of transportation of goods by air, there is an exemption under Notification 29/2005-S.T. for services rendered for transport of export goods by air. All these aspects are not considered while demanding tax on such charges. The deposits already made are sufficient for the purpose of Section 35F of Central Excise Act made applicable to appeals under Finance Act, 1994. So we grant waiver of pre-deposit of balance dues for admission of appeal. Appellant had not given adequate assistance to adjudicating authority in reconciling the figures appearing in the balance sheets and to explain the nature of services for which charges were being collected by them and also the charges which have been already included in the value of the services on which they have paid service tax. Since the applicants understand their accounts and returns better than the department it is their duty to explain the figures properly rather than argue that the Revenue has not been able to prove that consideration received is for non-taxable service or that on such consideration received tax has been paid under other heads. While making submissions for a fresh adjudication the appellant is directed to make full submissions in this regard. - Since there are basic flaws in the adjudication order as already pointed out and there is need for readjudication, we consider it proper to set aside the impugned order at this stage itself and remit the matter to the adjudicating authority for a fresh decision after hearing the appellant on all issues. - matter remanded back - Decided in favour of assessee.
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