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2015 (3) TMI 181 - AT - Service TaxWaiver of pre deposit - Business Auxiliary service - Revenue contends that appellant undertaken the service of market survey which falls under the purview of business auxiliary service in India - Held that - Revenue is relying upon the un-amended Rule of Export of Service Rules, 2005. The Rule is amended from 27.2.2010 and the demand is after Feb.2010. In view of this, the demand is not sustainable. In these circumstances, we find that the applicant has made out of a case for total waiver of the dues. Therefore, pre-deposit of the dues is waived and recovery thereof is stayed during the pendency of the appeal - Matter remanded back - Decided in favour of assessee.
Issues:
1. Waiver of pre-deposit of service tax, interest, and penalties. 2. Interpretation of Export of Service Rules, 2005. 3. Compliance with provisions of Sec. 86 of the Finance Act and Section 35F of the Central Excise Act. Analysis: Issue 1: Waiver of Pre-Deposit The appellant filed an application for waiver of pre-deposit of service tax, interest, and penalties amounting to &8377; 47,10,087. The Revenue confirmed the demand based on the appellant providing business auxiliary services to a Singapore firm, failing to pay service tax. The Commissioner (Appeals) directed the appellant to deposit the tax amount with interest for the appeal hearing. However, the appellant failed to comply, leading to the dismissal of the appeal. The Tribunal noted that the Revenue relied on the unamended Rule of Export of Service Rules, 2005, whereas the demand was made post-amendment on Feb. 2010. Consequently, the Tribunal found the demand unsustainable, granting a total waiver of the dues and staying the recovery during the appeal's pendency. Issue 2: Interpretation of Export of Service Rules, 2005 The appellant argued that the Revenue's reliance on the provisions of sub-rule (2) of Rule 3 of Export of Service Rules, 2005 was incorrect, as the said sub-rule was omitted post-amendment on 27.2.2010. The appellant contended that the only remaining requirement for service export was the receipt of payment in convertible foreign exchange, a fact undisputed by the Revenue. Despite the appellant raising this argument before the adjudicating authority, the demand was confirmed considering the amended Rule. The Tribunal agreed with the appellant, holding that the demand was not sustainable post-amendment, thus warranting a waiver of the dues. Issue 3: Compliance with Legal Provisions The Commissioner (Appeals) dismissed the appeal due to the appellant's non-compliance with the provisions of Sec. 86 of the Finance Act read with Section 35F of the Central Excise Act. However, as the appeal was not decided on merits, the Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeals) for a decision on the appeal's merits after providing the appellant with a hearing opportunity. The Tribunal allowed the stay petition and remanded the appeal accordingly. In conclusion, the Tribunal granted a waiver of pre-deposit, emphasizing the inapplicability of the unamended Rule post-amendment, and directed a fresh decision on the appeal's merits, ensuring compliance with the legal provisions.
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