2010 (10) TMI 266 - AT - Service Tax

Waiver of pre-deposit - CENVAT credit - Contention raised by the appellants in response to the show cause notice that erection of tower was absolutely necessary for mounting antenna thereon in order to enable the antenna to transmit the signal - The tower is essentially embedded in the earth to have proper strength and stability to such tower - The same cannot be moved to different places unless it is dismantled and in the process, some of its parts being damaged, it cannot be removed to different places by retaining its character as the tower - The authorities finding regarding suppression of fact of availment of credit on the items used in erection of tower and on that ground, the credit having been denied, prima facie, do not find any fault with the said finding - Do not find any Prima facie case having been made out for waiver of the amount demanded under the impugned order.

Summary

Issues:
1. Invocation of extended period of limitation for demand of service tax and cenvat credit.
2. Denial of cenvat credit for goods utilized in tower erection.
3. Financial condition justifying waiver of pre-deposit.

Issue 1:
The appeal arose from an order confirming a demand for service tax and cenvat credit, with interest and penalty, based on an order dated 23-9-2009. The appellant argued that the period involved was from 2002 to 2005, questioning the invocation of the extended period of limitation in the absence of justification. The advocate contended that the cenvat credit was essential for rendering services to customers, citing a relevant decision. The authorities were criticized for not considering specific issues raised in response to the show cause notice. However, the Joint CDR argued that the case fell under the purview of a previous decision by a Larger Bench, supporting the denial of credit due to suppression of facts.

Issue 2:
Regarding the denial of cenvat credit for goods used in tower erection, the appellant claimed that the tower was necessary for transmitting signals and, therefore, the credit should not have been denied. However, the tribunal noted that the tower's removal without damage was not supported by evidence on record. The placement of the antenna at a certain height was deemed necessary for signal transmission range, and the tower's embedded nature made it impractical to move without dismantling, potentially causing damage.

Issue 3:
The financial condition of the appellants was raised as a point for waiving the pre-deposit requirement. The tribunal found no substantial evidence of financial difficulty to justify the waiver. Consequently, it was determined that the appellants should deposit the entire demanded amount along with interest within twelve weeks, with the waiver of penalty until the appeal's disposal.

This judgment addressed the invocation of the extended period of limitation for service tax and cenvat credit demand, the denial of credit for goods used in tower erection, and the financial condition's relevance to the pre-deposit waiver. The tribunal upheld the denial of credit based on suppression of facts, highlighted the impracticality of moving the tower without damage, and found no substantial evidence supporting financial difficulty for waiving the pre-deposit requirement. The appellants were instructed to deposit the demanded amount within a specified timeframe, with penalty waiver until the appeal's resolution.