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2013 (12) TMI 264 - AT - Service TaxStay application - Waiver of pre deposit - Penalty u/s 78 - Held that - adjudicating authority has confirmed the demand following Rule 5(1) of Service Tax (Determination of Value) Rules, 2006 which has been struck down by the Hon ble Delhi High Court in the case of Intercontinental Consultants & Technocrats Pvt. Ltd. (2012 (12) TMI 150 - DELHI HIGH COURT). In these circumstances, we are of the view that the Applicant could able to make out a prima facie case for total waiver of pre-deposit of dues adjudged. Accordingly, all dues adjudged is waived and its recovery stayed during the pendency of the Appeal
Issues: Application for waiver of pre-deposit of Service Tax and penalty under Section 78 of the Finance Act, 1994.
Analysis: 1. The applicant, operating as a Customs House Agent (CHA), sought waiver of pre-deposit of Service Tax amounting to Rs.37.57 Lakhs and an equal penalty imposed under Section 78 of the Finance Act, 1994. 2. The advocate contended that the demand was initially Rs.69,57,695/-, reduced by the Commissioner to Rs.37.57 Lakhs. The Commissioner upheld the amount, stating that the applicant failed to prove acting as a pure agent, thus disallowing reimbursement under Rule 5(1) of Service Tax Valuation Rules, 2006. 3. The advocate argued that the demand was confirmed based on Rule 5(1) of the Valuation Rules, which was invalidated by the Delhi High Court in the case of Intercontinental Consultants & Technocrats Pvt. Ltd. vs. Union of India, as ultra vires to Section 67 of the Finance Act, 1994. 4. The Revenue representative mentioned that a Special Leave Petition (SLP) was filed against the Delhi High Court's decision, but no stay was granted. 5. After hearing both parties and examining the records, the Tribunal noted the invalidation of Rule 5(1) by the Delhi High Court and granted total waiver of pre-deposit, staying the recovery of all dues during the appeal's pendency. The Tribunal allowed the Stay Petition. This judgment showcases the Tribunal's consideration of the legal validity of the Rule governing the demand, leading to the waiver of pre-deposit and stay on recovery due to the prima facie case established by the applicant in light of the Delhi High Court's decision.
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