2013 (1) TMI 191 - AT - Service Tax

Waiver of pre-deposit - Stay of recovery - Extended period of limitation - under subsection (2) of Section 73A - Service tax to the above extent was collected by them from their customers but did not credit it the exchequer - Held that - As the appellant collected service tax and, admittedly, did not remit it to the exchequer, they do not have prima facie case against the impugned order. The appellant has not pleaded financial hardships in the present application. Pre-deposit an amount of Rs.2,00,00,000/- (Rupees Two Crores Only) within six weeks and report compliance to the Assistant Registrar on 3.10.2012 and Assistant Registrar to report to the bench on 10.10.2012 Subject to due compliance, there will be waiver of pre-deposit and stay of recovery in respect of penalty imposed on the appellant and the balance amount of service tax and interest thereon In favour of revenue

Issues:
1. Appellant seeking waiver of pre-deposit and stay of recovery in relation to adjudged dues, including service tax demand.
2. Dispute regarding liability for payment of service tax despite collecting it from customers.
3. Invocation of proviso to Section 73(1) of the Finance Act, 1994.
4. Interpretation of Section 73A of the Act concerning the deposit of collected service tax.
5. Consideration of financial hardships and plea of limitation.
6. Direction to pre-deposit a specific amount and conditions for waiver of pre-deposit and stay of recovery.
7. Dismissal of the application for out-of-turn disposal of the stay application.

Analysis:

1. The appellant filed an application seeking waiver of pre-deposit and stay of recovery concerning adjudged dues, including a service tax demand of Rs.6,15,22,430/- for the period from June 2007 to August 2008. The appellant argued that they were not liable for the payment of service tax for the activity undertaken, despite collecting it from customers but not crediting it to the exchequer. The appellant contended that as a public sector undertaking, they had no intention to evade tax liability, challenging the invocation of the proviso to Section 73(1) of the Finance Act, 1994.

2. The Tribunal considered the mandate of subsection (2) of Section 73A of the Act, which requires any person who collected an amount as representing service tax but was not required to collect it, to pay it to the Central Government. The Tribunal noted that since the appellant collected service tax but did not remit it to the exchequer, they lacked a prima facie case against the impugned order. The appellant did not cite financial hardships in their application, and the plea of limitation was deemed unconvincing due to the absence of a time bar provision in Section 73A of the Act.

3. In light of the above considerations, the Tribunal directed the appellant to pre-deposit an amount of Rs.2,00,00,000/- within six weeks. Upon compliance, there would be a waiver of pre-deposit and stay of recovery concerning the penalty imposed on the appellant, as well as the balance amount of service tax and interest. The Tribunal also took into account that the appellant was an undertaking of the State Government.

4. The miscellaneous application requesting out-of-turn disposal of the stay application was deemed infructuous and subsequently dismissed.

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