2009 (3) TMI 893 - AT - Service Tax

Summary

Issues:
1. Waiver of pre-deposit of service tax and penalties for two appeals.
2. Eligibility for exemption under Notification No. 14/2004-ST and Notification No. 6/2005-S.T.
3. Use of brand name/trade name of another person.
4. Plea of limitation and bona fide belief regarding liability to pay service tax.

Analysis:
1. The judgment pertains to applications for waiver of pre-deposit of service tax and penalties in two appeals. The first demand covers the period from 10-9-2004 to 31-3-2005, and the second demand is for the period 1-4-2005 to 31-3-2006. The Tribunal considered the submissions of both sides and made decisions based on the merits of each case.

2. Regarding the first appeal (S/299/2008), the Tribunal found prima facie force in the argument that the applicant, an individual and proprietor of M/s. Ultra Service, is entitled to exemption under Notification No. 14/2004-ST dated 10-9-2004. As the lower appellate authority did not address this issue, the Tribunal waived pre-deposit of service tax and penalties, staying recovery pending the appeal.

3. In contrast, for the second appeal (S/300/2008), the Tribunal noted that there was no strong prima facie case for total waiver based on eligibility for exemption under Notification No. 6/2005-S.T. The applicants had used the brand name of Eureka Forbes Ltd., which did not fulfill the conditions for exemption. Additionally, the plea of limitation and lack of a prima facie case regarding a bona fide belief of non-liability to pay service tax were not accepted.

4. The Tribunal directed the pre-deposit of the amount of Rs. 35,642 for the second appeal within four weeks, failing which the stay would be vacated, and the appeal dismissed without further notice. Compliance was required to be reported by 1-5-2009, emphasizing the importance of adhering to the Tribunal's directions in a timely manner to maintain the stay on recovery of penalties.

In conclusion, the judgment carefully considered the eligibility for exemptions, use of brand names, limitations on pleas, and the importance of compliance with directives to ensure fair proceedings in the appeals related to service tax and penalties.