SAVINO DEL BENE FREIGHT Vs. C.C.E.

JUDGEMENT

(1.) APPLICATION for waiver of pre -deposit of Service Tax of Rs. 16,04,767/ - and penalty of amount equal to the tax Under Section 78; Rs. 1000/ - Under Section 77; Rs. 200 per day Under Section 76 and Rs. 500 Under Section 77A of the Finance Act 1944 arises out of order of the Commissioner (Appeals) Central Excise, Mumbai. Tax has been levied on the applicants herein as clearing and forwarding agents liable to Service Tax. We find prima facie force in the plea of applicants that since they do not physically handle any goods, they are entitled to waiver in the light of Tribunal's order in Mahavir Generics v. CCEX, Bangalore and Raja Rajeshwari Intl. Polymers Pvt. Ltd. v. CCE, Bangalore III . The decision in the case of Mahavir Generics considers the decision in Prabhat Zarda Factory (I) Ltd v. CCE, Patna relied upon by the Commissioner (Appeals) in the impugned order. The other decision relied upon the Commissioner (Appeals) namely decision reported in 2004 (177) E.L.T. 191 follows decision in the Prabhat Zarda Factory (I) Ltd. case but that did not take note of CBEC Circular No. 39/2/2002, dated 20 -2 -2002, which stipulates that agent must handle goods in order to be considered as Clearing and Forwarding Agent. In view of this, since no goods have been handled in this case, strong prima facie case for waiver has been made out, pre -deposit is waived along and recovery thereof, stayed, pending the appeal.