2009 (4) TMI 277 - AT - Service Tax

Business Auxiliary Services - The grid of the KSEB Kerala is utilized for transmission of power to various states. For this the appellant KSEB receives certain charges known as wheeling charges . demand of service tax on wheeling charges received appellant brought to our notice the decision of the Tribunal in the case of M.P. Power Transmission Company Ltd. v. CCE Bhopal 2008 - TMI - 4449 - CESTAT Delhi wherein it has been held that transmission service would be taxable under the category of Business Support Services . We can not say that the appellants have prima facie a very strong case on merits. stay granted parlty

Summary

Issues:
1. Whether the wheeling charges received by the appellant are liable to service tax under the category of "Business Auxiliary Services"?
2. Whether the demand raised by the Revenue, including penalties and interest, is sustainable?
3. Whether the appellants have a strong case on merits to contest the demand?

Analysis:

Issue 1:
The appellants, Kerala State Electricity Board (KSEB), received wheeling charges for utilizing their grid for power transmission. The Revenue contended that these charges constitute "Business Auxiliary Services" as they promote the business of selling power to electricity boards. The appellants argued that the charges should not be taxable under this category as they were not notified under it and that no service tax is involved in the transmission of power. The Departmental Representative supported the Revenue's stance, asserting that the wheeling charges are rightly liable to service tax under "Business Auxiliary Services."

Issue 2:
The Revenue proceeded against the appellants for the period from 1-7-2003 to 31-3-2007, confirming the demand for service tax, penalties under various sections of the Finance Act, and interest. The appellants contested the demand, citing a Tribunal decision and questioning the applicability of the taxes and penalties. The Tribunal acknowledged the legal issues involved and ordered a pre-deposit of Rs. 1,00,00,000 within three months, waiving the balance amount of Service Tax, interest, and penalties until the appeal's disposal.

Issue 3:
The appellants argued that they had a strong case on merits to contest the demand, referencing a Tribunal decision that supported their position. However, the Tribunal noted that even the decision they relied on categorized the activity under "Business Support Service," which came into effect after the relevant period. The Tribunal, considering all factors, including the lack of prima facie strength in the appellant's case, ordered the pre-deposit while reserving the final decision for the appeal's disposal.

This judgment highlights the complexities surrounding the taxation of wheeling charges in the context of power transmission services and the legal arguments presented by both parties. The Tribunal's decision to order a pre-deposit reflects a cautious approach to balance the interests of both parties pending the final resolution of the appeal.