2015 (1) TMI 382 - AT - Service Tax

Waiver of pre deposit - CENVAT Credit - construction services - Held that - Lower authorities in the second round of litigation have denied the appellant Cenvat credit on Service Tax paid on the construction services. While remanding the matter in the second round of litigation, we had indicated that the appellant could be eligible for the Cenvat credit. Ld. counsel brings to our notice the stay order passed by this Bench in appeal No. ST/549/11 wherein we had granted unconditional waiver and remanded the matter back to the lower authorities. He would also rely upon the decision of this Bench in stay order of Navratan S.G. Highway Properties P. Ltd. - 2012 (9) TMI 452 - CESTAT, AHMEDABAD of the same proposition. - appellant is rendering an output service of renting out of immovable property and the property which has been developed by construction is in his possession and he is owner of the said property. If that be so, in our view appellant has made out a prima facie case for the availment of Cenvat credit of the Service Tax paid on the construction services. Accordingly, we allow the application for waiver of the pre-deposit of the amounts involved and stay the recovery thereof till the disposal of appeal. - Stay granted.

Summary

Issues: Condonation of delay in filing appeal, eligibility for Cenvat credit on Service Tax paid on construction services, waiver of pre-deposit, stay of recovery.

The judgment addresses the issue of condonation of delay in filing the appeal before the Tribunal. The application for condoning the delay of ten days was filed, and after hearing both sides, the Tribunal found the delay properly explained and accepted the justification given. Consequently, the delay was condoned, and the Tribunal directed the registry to take the stay petition and the appeal on record.

Regarding the eligibility for Cenvat credit on Service Tax paid on construction services, the Tribunal noted that in the second round of litigation, the lower authorities denied the appellant Cenvat credit. However, in a previous remand, it was indicated that the appellant could be eligible for the credit. The Tribunal considered the appellant's case for the availment of Cenvat credit based on the nature of services rendered and the ownership of the developed property. It was concluded that the appellant had made out a prima facie case for the availment of Cenvat credit, and thus, the application for waiver of the pre-deposit of amounts involved was allowed, and the recovery thereof was stayed until the appeal's disposal.

In the context of the waiver of pre-deposit and stay of recovery, the Tribunal considered the appellant's output service of renting out immovable property, ownership of the developed property, and the payment of Service Tax on construction services. Relying on previous decisions and the appellant's case, the Tribunal granted the waiver of pre-deposit and stayed the recovery of the amounts involved until the appeal's final disposal. The decision was dictated and pronounced in the Court by the Members of the Tribunal.