2010 (7) TMI 367 - AT - Service Tax

Waiver of pre-deposit - part of the demand is related to the stamping and lamination manufactured as per the design and drawing requirement of the customer and sold to the customer for which they have separately charged the customers - contention of the appellant is that the amount so charged does not alter the nature of transaction, in all eventuality, it is for the sale of stamping and lamination Held that - payment has been received in convertible foreign exchange will not be liable to service tax, is prima facie, in favour of the appellant - limitation of time is concerned, the show-cause notice is undisputedly issued on11-4-2007and the period covered in the demand is1-10-2001to31-3-2002 pre-deposit waived

Issues:
1. Waiver of pre-deposit under Sections 76 and 75A.
2. Demand of service tax for providing taxable service of 'Consulting Engineering'.
3. Charging separate amounts for design, development, and preparation of dyes.
4. Exemption from service tax for payment received in convertible foreign exchange.
5. Plea of limitation of time for the demand of service tax.
6. Non-compliance with the requirement of pre-deposit under Section 35F of the Central Excise Act, 1944.

Analysis:

1. The Appellant filed an application for waiver of pre-deposit of Rs. 2,21,669/- along with interest and penalty under Sections 76 and 75A. The Commissioner (Appeals) rejected the appeal for non-compliance with the requirement of Section 35F without delving into the merits. The Tribunal found that the appeal could be summarily disposed of after hearing both sides.

2. The Appellant, engaged in manufacturing parts of electric motors and transformers, faced a demand of service tax for providing 'Consulting Engineering' services. The lower adjudicating authority confirmed the demand, leading the Appellant to appeal. The Commissioner (Appeals) ordered pre-deposit of the service tax and subsequently rejected the appeal for non-compliance with Section 35F without considering the case's merits.

3. Regarding the design, layout, and preparation of dyes, the Appellant argued that charging separate amounts does not change the transaction's nature, primarily for the sale of stamping and lamination. This contention was crucial in establishing the nature of the transaction.

4. The Appellant contended that receiving payment in convertible foreign exchange exempted them from paying service tax, citing the Export of Service Rules, 2005. The Tribunal noted the relevance of Rule 3 of the mentioned Rules and the plea of limitation of time raised by the Appellant.

5. The Tribunal acknowledged the Commissioner's failure to assess the case's merits and emphasized the Appellant's prima facie case in their favor. The Tribunal found merit in the arguments related to the sale of stamping and lamination and the exemption from service tax for payments in convertible foreign exchange.

6. Ultimately, the Tribunal waived the pre-deposit requirement and directed the lower appellate authority to decide the case on its merits without insisting on any pre-deposit. The appeal was allowed by way of remand, and the stay application was disposed of accordingly, ensuring a reasonable opportunity of hearing for the Appellant.

← Previous Next →