2013 (12) TMI 560 - AT - Service Tax

Waiver of pre-deposit - Stay of recovery - Demand of service tax - Intellectual Property Service - Suppression of material facts - Evasion of service tax - Held that - entire demand of service tax is on Intellectual Property Service held to have been received by the appellant from abroad during the aforesaid period. The demand is in the reverse charge mechanism embodied in Section 66A of the Act. It is also not in dispute that CENVAT credit of any service tax paid by an assessee in the said mechanism can be claimed by them in terms of Rule 3 of the CENVAT Credit Rules 2004 as retrospectively amended under Section 71 of the Finance Act 2011. Again it is not in dispute that the appellant is engaged in the manufacture of excisable products and are paying duty thereon. They are also providing taxable services and paying service tax thereon. In this scenario, the plea of revenue-neutrality raised by the learned counsel is prima facie irresistible. This plea has been raised in the context of contesting the invocation of the extended period of limitation - Conditional stay granted.

Issues:
- Waiver of pre-deposit and stay of recovery sought by the appellant in relation to adjudged dues for service tax and education cesses under the head 'Intellectual Property Service' for the period from April 2005 to March 2009.
- Plea of revenue-neutrality raised by the appellant in contesting the invocation of the extended period of limitation.
- Requirement for the appellant to pre-deposit a specified amount under Section 35F of the Central Excise Act.

Analysis:

1. The appellant sought waiver of pre-deposit and stay of recovery concerning the adjudged dues for service tax and education cesses under the category of 'Intellectual Property Service' for the period from April 2005 to March 2009. The demand was confirmed against the appellant based on a show-cause notice invoking the proviso to Section 73(1) of the Finance Act 1994. The appellant contended that the revenue-neutrality aspect was crucial, indicating that if required to pay the service tax, they could utilize CENVAT credit for duty payment on their excisable products. However, the adjudicating authority dismissed this plea without providing reasoning. The appellant persisted with the revenue-neutrality argument, which was considered by the tribunal. Both sides were heard, and the tribunal noted the demand was related to 'Intellectual Property Service' received from abroad under the reverse charge mechanism.

2. The tribunal acknowledged that the appellant, engaged in manufacturing excisable products and providing taxable services, could claim CENVAT credit for service tax paid under the reverse charge mechanism. The appellant's plea of revenue-neutrality was deemed compelling, especially in contesting the extended period of limitation. The appellant disclosed a specific amount demanded for the normal period. Following thorough deliberation on various crucial aspects, the tribunal directed the appellant to pre-deposit a designated sum under Section 35F of the Central Excise Act within a specified timeframe. Compliance was to be reported to the Deputy Registrar by a set date, with the Deputy Registrar required to provide a subsequent report. Upon due compliance with the pre-deposit requirement, waiver of pre-deposit and stay of recovery was granted for the remaining dues.

3. In conclusion, the tribunal's decision emphasized the importance of the appellant pre-depositing a specified amount under Section 35F of the Central Excise Act within the stipulated timeline. Compliance and reporting requirements were outlined, with the assurance of waiver of pre-deposit and stay of recovery for the outstanding dues contingent upon the appellant meeting the prescribed conditions. The judgment was pronounced and dictated in an open court setting, ensuring transparency and procedural clarity in the resolution of the matter.

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