TMI Blog2013 (5) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant : Mr. Arvind P. Datar, Mr. K. Vaitheeswaran For the Respondent : Mr. V. Sundareswaran JUDGMENT R. Banumathi,J. The above appeal is filed by the Assessee against the order passed by Customs, Excise and Service Tax Appellate Tribunal, Chennai (CESTAT) in Miscellaneous Order No.403892013 dated 04.02.2013, directing the Assessee to make pre-deposit of ₹ 30 lakhs as against the service tax of ₹ 1,38,23,529/- and penalty of ₹ 1,38,23,529/-. 2. Assessee M/s.Leaap International Private Limited, Chennai, a Proprietorship firm is engaged in providing Custom House Agent Service, Business Auxiliary Service and Business Support Service. Assessee is registered with Service Tax Commissionerate, Chennai and their Service Tax Registration Number is AAACL1251FST001. Assessee provide cargo space already booked by them in Airlines/Ship for their clients use for export of goods. Assessee pays charges for space bookings to the respective Airlines/Steamer Agents. Whenever consignment of their customers are sent using the space booked, Assessee charge their customers freight charges for the transportation of the goods by the respective Airlines/Steamer Agents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cargo for transporting their clients goods which has been utilised by the exporter/importer and prima facie case is made out that extra amount collected by the Assesse is in relation to the procurement of that service, by the order dated 04.02.2013 in Miscellaneous Order No.403892013, CESTAT directed the Assessee to pre-deposit a sum of ₹ 30 lakhs within a period of six weeks and report compliance on 26.03.2013. Being aggrieved by the order of CESTAT directing the Assessee to make pre-deposit of ₹ 30 lakhs, the Assessee has preferred this appeal. 6. Learned Senior Counsel for Assessee Mr.Arvind P.Datar submitted that Assessee is multi-modal transport operators and are engaged in making arrangements for transporting the goods and that Assessee is not procuring any goods or services which are inputs for clients and the contract between the clients and the Assessee is specifically one of providing transportation by various modes of transport to the clients and the same is not liable to be taxed. It was further submitted that the difference between the selling price and the purchase price is nothing but profit or loss, as the case may be, which cannot be subjected to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of Revenue: Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. 11. Two important expressions used in Section 35F of Central Excise Act are undue hardship to such person and safeguard the interests of Revenue . While dealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operators. Learned Senior Counsel further submitted that when the Commissioner of Central Excise having taken the view that ocean freight is not taxable, Tribunal ought to have been consistent in its view in waiving the pre-deposit for the Assessee also and it was not proper for the Tribunal to take a different view for the Assessee alone. 16. To contend that ocean freight is not leviable to service tax, the learned Senior Counsel placed reliance upon (2010) 18 STR 348 [M/S.GUDWIN LOGISTICS V. COMMISSIONER OF CENTRAL EXCISE, VADODARA]. In the said decision, the service provider had taken out the registration under Custom House Agent under Section 65(35) read with Section 65(105)(h) of Finance Act and rendered services such as fumigation, loading and unloading, stuffing goods in containers, labour charges for stuffing, facilitating charges and also collected ocean freight . The department levied service tax under the clearing and forwarding charges under Custom House Agent taxable services. CESTAT held that the substantial portion of the collected amount relates to ocean freight which itself is not liable to service tax under the Custom House Agent. Hence, the issue as to whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Service has to be adjudicated upon by the Tribunal, there cannot be a full waiver. In the facts and circumstances of the case, CESTAT directed the Assessee to remit ₹ 30 lakhs being 21.7% of the total amount of service tax portion of ₹ 1,38,23,529/- and granted waiver for the balance amount of ₹ 2,46,47,529/- i.e. ₹ 1,08,23,529/- being the tax amount and ₹ 1,38,23,529/- being the penalty. 21. Lastly, the learned Senior Counsel urged that in case, the Court is not inclined to accept the contention of the Assessee, prayed for reduction of pre-deposit amount. 22. Having regard to the facts and circumstances of the case and considering the submissions of the learned Senior Counsel for Assessee, we deem it appropriate that Assessee could be directed to deposit ₹ 20 lakhs instead of ₹ 30 lakhs as ordered by the CESTAT, so that the appeal shall be taken up for hearing on merits without further delay by the CESTAT. 23. Accordingly, the order of CESTAT in Miscellaneous Order No.403892013 dated 04.02.2013 is modified and Assessee is directed to make pre-deposit of ₹ 20 lakhs (Rupees Twenty Lakhs) within a period of four weeks from to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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