2014 (4) TMI 684 - AT - Service Tax

Waiver of predeposit of interest - demand of interest - appellant submitted that they have erroneously paid the tax on reimbursement of administrative charges which is not warranted - man power recruitment or supply agency services - Held that - applicant has taken a definite stand before the adjudicating authority that payment of tax is not warranted in this case. It is noted that the adjudicating authority has not given any observation on this issue. Prima facie , we find that Hon ble Delhi High Court 2012 (12) TMI 150 - DELHI HIGH COURT has struck down Rule 5 (1) of Service Tax (Determination of Value) Rules 2006. In view of that, we waive the predeposit of interest and penalty and stay its recovery during pendency of the appeal - Stay granted.

Summary

Issues: Application for waiver of predeposit of interest and penalty.

Analysis:
1. The applicant filed an application seeking waiver of predeposit of interest amounting to Rs.19,80,691/- along with penalty. The advocate representing the applicant argued that they are involved in providing man power recruitment or supply agency services and had mistakenly paid tax on reimbursement of administrative charges. The advocate cited a decision of the Hon'ble Delhi High Court in support of their claim that the tax payment was not warranted. Although the applicant had already paid the tax, they were not contesting it at that stage. The advocate emphasized that the matter had been brought before the adjudicating authority, and therefore, no interest should be levied.

2. On the contrary, the Revenue's representative contended that the applicant had indeed paid the tax, and a show cause notice had been issued proposing only the demand of interest as per Section 75 of the Finance Act, 1994. The Revenue argued that since the tax had been paid, disputing the interest demand at this stage was not permissible.

3. The Tribunal, after considering the arguments presented, observed that the applicant had taken a clear stance before the adjudicating authority that the tax payment was not justified in this case. Notably, the adjudicating authority had not provided any remarks on this matter. The Tribunal noted that the Hon'ble Delhi High Court had invalidated Rule 5(1) of the Service Tax (Determination of Value) Rules 2006. Based on this finding, the Tribunal decided to waive the predeposit of interest and penalty, further staying the recovery process during the appeal's pendency. Consequently, the stay application was granted by the Tribunal.