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Judgment
P.C.: Whether the CESTAT was justified in directing the appellant to deposit Rs. 85,00,000/- for entertaining the appeal against the order-in-original dated 10th December 2009 is the question raised in this appeal. The appeal is admitted on the above substantial question of law and is taken up for final hearing by consent of both the parties.
The appellant is engaged in providing ship management services to various shipping companies, such as ABG Shipping, Pranik Shipping, South India Corporation Agency Limited, ESSAR Shipping Limited. On the basis of the service charges received during the period from 16th June 2005 to 31st October 2006 from various companies, show-cause notice was issued on 12th February 2009 and by an order-in-original dated 10th December 2009 demand of tax was confirmed amounting to Rs. 1.81 crores with interest and penalty. Challenging the aforesaid order, the appellant filed an appeal before the CESTAT with an application for waiver of pre-deposit. By the impugned order 2012 (28) S.T.R. 30 , the CESTAT has directed the appellant to deposit Rs. 85,00,000/- before entertaining the appeal.
It is the case of the appellant that the services rendered by the appellant-assessee would be covered under the heading "Ship Management Services" from 1st May 2006 and not under heading ''Manpower Recruitment and Supply Agency''s Services'' prior to 1st May 2006. The question, therefore, to be considered in the appeal filed before the Tribunal is whether the services rendered by the appellant for the period prior to 1st May 2006 were covered under "Manpower Recruitment and Supply Agency Services". From the judgment of the Tribunal in the case of 2011 (24) S.T.R. 557 , it appears that the Revenue was seeking to tax such services under the head ''Management Consultancy Services''. Thus, it is seen that prior to 1st May 2006, there is inconsistency in the stand of the Revenue. The fact that the assessee in the year 2007 has collected and paid tax from ABG Shipping under the heading ''Manpower Recruitment and Supply Agency Services'' for the period prior to 1st May 2006 would not mean that the assessee has accepted that the tax is leviable under the heading ''Manpower Recruitment and Supply Agency Services''. In these circumstances, in view of the fact that there being inconsistency in the stand of the Revenue in relation to the head under which the service tax was leviable, prior to 1st May 2006, in our opinion, it would be just and proper in the facts of the present case to hear the appeal on merits without insisting on any pre-deposit.
Accordingly, the impugned order dated 23rd February 2012 2012 (28) S.T.R. 30 passed by the CESTAT is quashed and set aside and the CESTAT is requested to hear the appeal on merits in accordance with law without insisting on any pre-deposit. The appeal is accordingly disposed of with no order as to costs.