2013 (12) TMI 1382 - AT - Service Tax

Waiver of pre-deposit of CENVAT Credit - Valuation inclusion of value of the diesel which was purchased for testing, the DG sets manufactured and supplied by the appellant - Held that - On perusing the terms and conditions of the purchase order, we find that the condition of erection, installation and commissioning is not mentioned in the purchase order and the delivery is considered as effected the moment the DG sets are delivered at the purchaser s site. The condition of erection, installation and commissioning is not a part of the sales contract or the purchase order placed for the DG sets manufactured by the appellant and if the same is not a part of the sales contract, we are unable to understand how the cost of the diesel used by the appellant while taking the trial run of the DG sets at the customer s premises, would form a part of the assessable value of the DG sets and is liable to duty. Accordingly, the application for waiver of pre-deposit of balance amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Following decision of assessee s own case 2013 (4) TMI 128 - CESTAT AHMEDABAD - Prima facie case in favour of assessee - Stay granted.

Summary

Issues:
- Stay petition for waiver of pre-deposit of CENVAT Credit, interest, penalty under Section 76 of Finance Act, 1994, and penalty under Rule 15(3) of CENVAT Credit Rules, 2004.

Analysis:

Waiver of Pre-deposit:
The Stay Petition was filed seeking a waiver of pre-deposit of CENVAT Credit, interest, and penalties. The appellant's counsel argued that the issue pertained to the denial of CENVAT Credit on Service Tax paid by a sub-contractor for erecting and commissioning diesel generating sets. The Bench noted that in previous Stay Orders, unconditional waivers were granted in the appellant's favor for similar issues. The Departmental Representative confirmed that the issue in the current case was the same as in the previous Stay Orders. The Bench, after reviewing the past decisions, found no reason to deviate from the previous view and granted the waiver of pre-deposit, staying the recovery until the appeal's disposal.

Identical Issue with Previous Appeals:
The Bench observed that the issue in the current appeal was identical to Appeal No. ST/240-242/2011. Therefore, the Registry was directed to link the current appeal with the previous ones for a consolidated disposal. This step aimed to streamline the adjudication process and ensure consistency in decision-making for similar issues across appeals.

Conclusion:
The Appellate Tribunal, in the judgment, allowed the application for waiver of pre-deposit of the amounts involved, including CENVAT Credit, interest, and penalties. The recovery was stayed pending the appeal's final disposal. By linking the current appeal with previous ones addressing the same issue, the Tribunal aimed to efficiently manage similar cases and ensure uniformity in decisions. The judgment emphasized the importance of consistency in addressing recurring legal issues to promote fairness and predictability in tax matters.