2009 (8) TMI 747 - AT - Service Tax

Waiver of pre-deposit Business Auxiliary Services activity carried out them will amount to manufacture - pre-deposit waived

Summary

Issues: Stay petition against waiver of pre-deposit for Service Tax and penalty under Section 78 of the Finance Act, 1994. Determination of whether the activity amounts to processing or manufacture.

Analysis:
The case involved a stay petition against the waiver of pre-deposit for Service Tax and equivalent penalty under Section 78 of the Finance Act, 1994. The issue at hand was to determine whether the appellant's activity constituted processing or manufacture. The appellant argued that the activity should be considered as manufacturing, thereby falling outside the scope of business auxiliary services. This argument was supported by the agreement entered into by the appellant with the exporter. On the other hand, the Departmental Representative contended that the activity was solely processing and did not amount to manufacture.

Upon reviewing the submissions from both sides and examining the records, the Tribunal concluded that a detailed consideration of the appellant's activity was necessary to determine whether it constituted processing or manufacture. The Tribunal noted that a conclusive decision on this matter could only be reached at the final disposal of the appeal. Consequently, the Tribunal found that the appellant had not established a prima facie case for a complete waiver of the amounts in question. As a result, the Tribunal directed the appellant to deposit a specified sum within a specified timeframe, with the condition that upon compliance, the pre-deposit requirement for the remaining amounts would be waived, and recovery stayed pending the appeal's final disposal.

In summary, the Tribunal's decision hinged on the distinction between processing and manufacturing in the context of the appellant's activity, emphasizing the need for a thorough assessment before reaching a definitive conclusion. The Tribunal's ruling struck a balance by requiring a partial deposit while providing the possibility of a waiver for the remaining amounts subject to compliance and pending the appeal's resolution.