2012 (9) TMI 861 - AT - Central Excise

Waiver of pre-deposit of duty - Availment of CENVAT Credit on the invoices which were raised for discharge of Service Tax liability on renting of immovable property - Held that - There is no dispute that the appellant has received the services under the category of renting of immovable property. It is also not in dispute that the appellant has got the duty paying documents indicating the discharge of Service Tax liability by the service provider under the category of renting of immovable property. It is also not in dispute that the said properties were used by the appellant for his business activities. All these three factual aspects having not been denied, the availment of Cenvat credit of the Service Tax paid by the second appellant cannot be faulted as he is eligible to avail Cenvat credit - appellant has made out a prima facie case for waiver of the pre-deposit of the amounts involved in these cases. Accordingly, the applications for waiver of pre-deposit of balance amounts involved are allowed and recovery thereof stayed till the disposal of appeals - Stay granted.

Summary

Issues involved:
Waiver of pre-deposit of duty, interest, and penalty related to Cenvat credit availed on invoices for Service Tax liability on renting of immovable property.

Analysis:
The appellant filed a Stay Petition seeking waiver of pre-deposit of duty, interest, and penalty totaling Rs. 21,01,800/- imposed for availing Cenvat credit on invoices related to Service Tax liability on renting of immovable property. The issue revolved around the appellant availing and subsequently reversing Cenvat credit on the same amount, which was questioned by the lower authorities citing the Tribunal's decision in the case of BDH Industries. The Tribunal noted that the appellant received services for renting immovable property, obtained duty paying documents showing Service Tax discharge by the service provider, and used the properties for business activities. As these factual aspects were undisputed, the Tribunal concluded that the appellant was eligible to avail Cenvat credit.

The Tribunal found that the appellant established a prima facie case for waiver of the pre-deposit amounts involved in the case. Consequently, the Tribunal allowed the applications for waiver of pre-deposit of the balance amounts and stayed the recovery until the disposal of the appeals. This decision was based on the appellant's eligibility to avail Cenvat credit for the Service Tax paid on renting immovable property for business purposes, as supported by the factual evidence presented during the proceedings.

In conclusion, the Tribunal granted the appellant's request for waiver of pre-deposit of duty, interest, and penalty related to the Cenvat credit availed on invoices for Service Tax liability on renting of immovable property. The decision was made after considering the factual aspects, the appellant's eligibility for Cenvat credit, and the establishment of a prima facie case for waiver. The recovery of the amounts involved was stayed pending the final disposal of the appeals, ensuring a fair and just resolution of the matter.