2013 (10) TMI 1207 - AT - Service Tax

Waiver of pre deposit - Cable service - Held that - entire amount of service tax with interest has been deposited after taking into account the CENVAT credit admissible and in view of the fact that there are decisions taking a view that CENVAT credit would be admissible subject to availability of documents and eligibility in cases where the duty/service tax has not been paid, we consider that the amount of service tax deposited after adjusting the CENVAT credit would be sufficient for the present purpose. We also take note of the fact that 25% of the penalty also has been paid and also appellant is challenging the penalty - amount deposited is sufficient for the purpose of stay. - stay granted.

Summary

Issues involved: Liability to pay service tax on cable service provided; Admissibility of CENVAT credit.

The judgment by the Appellate Tribunal CESTAT Bangalore, delivered by Shri B.S.V. Murthy, addresses the issue of whether the appellant is liable to pay service tax on cable service provided. The appellant had paid the entire amount of service tax with interest and 25% of the penalty imposed under Section 76. The appellant claimed to have taken into account and deducted the admissible CENVAT credit while paying the service tax. However, the Department contested the admissibility of CENVAT credit. The Tribunal noted that there are decisions supporting the admissibility of CENVAT credit subject to availability of documents and eligibility in cases where the duty or service tax has not been paid. Considering that the service tax was deposited after adjusting the CENVAT credit and that 25% of the penalty was paid, the Tribunal found the amount deposited to be sufficient for granting a stay against recovery of dues during the pendency of the appeal. The Tribunal emphasized that if the claim made by the appellant regarding the deposit is found to be incorrect, the Revenue is free to file a miscellaneous application for vacation of stay and dismissal of the appeal. The Tribunal, therefore, waived the predeposit and granted a stay against recovery of dues during the appeal process.

In summary, the judgment primarily revolves around the liability of the appellant to pay service tax on cable services provided and the admissibility of CENVAT credit. The appellant had paid the service tax amount along with interest and a portion of the penalty, claiming to have adjusted the admissible CENVAT credit. The Tribunal considered previous decisions supporting the admissibility of CENVAT credit under certain conditions. Consequently, the Tribunal found the amount deposited by the appellant to be sufficient for granting a stay against the recovery of dues during the appeal. The Tribunal emphasized that if the appellant's claim regarding the deposit is found to be incorrect, the Revenue can file for vacation of stay and dismissal of the appeal.