2014 (1) TMI 1371 - AT - Service Tax

Waiver of pre-deposit of Service Tax - Penalty u/s 77 & 78 - Held that - goods after processing are returned to the original raw materials supplied by DSP, and the finished product produced from the processed raw materials are cleared on payment of duty, is also not in dispute. We find that the conditions of Notification 8/2005-S.T., dated 1-3-2005 as amended, are satisfied. In these circumstances, the applicants are able to make out a prima facie case for total waiver of pre-deposit. Therefore, the requirement of pre-deposit of all dues adjudged is waived and recovery of the same is stayed during pendency of appeal - Stay granted.

Summary

Issues:
1. Waiver of pre-deposit of Service Tax and penalty under Sections 78 and 77 of the Finance Act, 1994.

Analysis:
The applicant, a Government of India Undertaking Sector, sought waiver of pre-deposit of Service Tax amounting to Rs. 1.48 Crores, an equal penalty under Section 78 of the Finance Act, 1994, and Rs. 5,000 under Section 77 of the same Act. The applicant highlighted their requirement to obtain clearance from COD and the appeal filing date of 15-11-2010. The advocate for the applicant presented a correspondence dated 2-12-2010 from the Managing Director to the Ministry of Steel, indicating pending COD clearance. The applicant's argument revolved around their processing and recovery of iron and steel scrap for Durgapur Steel Plant (DSP), which used the scrap for manufacturing excisable goods. They contended that the Department levied Service Tax on their activity as business auxiliary services, despite exemption under Notification 8/2005-S.T., dated 1-3-2005, for goods processed and returned to the original raw material suppliers, with finished goods cleared on payment of duty. The applicant provided a certificate from DSP supporting this claim, which was allegedly not considered by the Commissioner during adjudication.

The Department's Assistant Commissioner (AR) failed to present any evidence contrary to the applicant's contentions but reiterated the Commissioner's findings. The Tribunal noted that the processed goods were returned to the original raw material suppliers, DSP, and the finished products were cleared after payment of duty, meeting the conditions of Notification 8/2005-S.T., dated 1-3-2005. As such, the Tribunal found that the applicant established a prima facie case for total waiver of pre-deposit. Consequently, the requirement for pre-deposit of all dues adjudged was waived, and recovery stayed during the appeal's pendency. The Tribunal granted the stay petition, allowing the applicant relief from the pre-deposit requirement.

This judgment by the Appellate Tribunal CESTAT KOLKATA addressed the issue of waiver of pre-deposit of Service Tax and penalties under the Finance Act, 1994. The Tribunal considered the applicant's status as a Government of India Undertaking Sector, the exemption under Notification 8/2005-S.T., and the lack of contrary evidence from the Department to support the waiver request. The Tribunal's decision highlighted the fulfillment of conditions under the notification, leading to the grant of a stay on recovery during the appeal process.