2015 (1) TMI 728 - AT - Service Tax

Waiver of pre-deposit of Service Tax - CENVAT Credit - Capital goods - erection, commissioning and installation services - Held that - In this case the allegation of suppression has not been alleged against the applicant for taking Cenvat Credit on capital goods, which were used by the applicant during the impugned period for providing exempted service. In these circumstances, the applicant has made out a strong case for complete waiver of pre-deposit of the entire amount of tax, interest and penalty shall stand waived and recovery thereof during the pendency of the appeal. - Stay granted.

Summary

Issues:
1. Waiver of pre-deposit of Service Tax along with interest and penalties under the Finance Act, 1994.
2. Denial of Cenvat Credit on capital goods.
3. Allegation of suppression of fact and limitation issue.

Analysis:

Issue 1: Waiver of pre-deposit of Service Tax:
The applicant sought waiver of pre-deposit of Service Tax of Rs. 2,26,72,415/- along with interest and penalties. The service tax demand was confirmed under the category of erection, commissioning, and installation services. The applicant contended that their activity of fabrication should be considered as manufacturing, thus not liable for service tax under the mentioned category. The Tribunal found that the applicant had a strong case for complete waiver of pre-deposit, as there was no allegation of suppression against them for taking Cenvat Credit on capital goods used for providing exempted services during the impugned period. Therefore, the Tribunal ruled in favor of the applicant for the waiver.

Issue 2: Denial of Cenvat Credit on capital goods:
The denial of Cenvat Credit on capital goods was based on the premise that these goods were used for providing exempted services during the relevant period. The applicant argued that the capital goods could be used for both exempted and taxable services, thus they were entitled to the credit. Additionally, the applicant had claimed depreciation on these capital goods, but later withdrew the claim through a revised Income Tax Return, which was accepted and assessed by the Income Tax Officer. The Tribunal considered the arguments and the absence of allegations of suppression in the show cause notice, leading to the conclusion that the applicant was entitled to Cenvat Credit on the capital goods.

Issue 3: Allegation of suppression of fact and limitation issue:
The limitation issue arose as the show cause notice did not specifically allege that the applicant had suppressed the fact of providing exempted services using the capital goods. The Tribunal noted that prima facie, the applicant was not entitled to take Cenvat Credit on these goods. However, the Tribunal directed the applicant to make some pre-deposit, leaving the limitation issue to be addressed at the final hearing. Ultimately, the Tribunal found that there was no allegation of suppression regarding the Cenvat Credit on capital goods used for exempted services, leading to a decision in favor of the applicant for the waiver of pre-deposit.

In conclusion, the Tribunal granted the waiver of pre-deposit of Service Tax and related amounts to the applicant based on the arguments presented and the absence of allegations of suppression in the case.