2015 (3) TMI 665 - HC - Service Tax

Waiver of pre-deposit - valuation - credit on inputs supplied to the job worker for fabrication of excisable goods on which job worker on which job worker did not avail credit - Held that - The first issue on the availment of cenvat credit twice, is an arguable issue and the second issue on the difference between the billed amount and the actual amount received on the basis of the ST-3 returns over which an explanation has been given, however, not accepted by the Department, is a matter for reconciliation by the Tribunal. - Taking note of the total amount of demand under the adjudication order amounting to ₹ 74.00 lakhs (approx.), the Tribunal ordered pre-deposit of ₹ 20 lakhs. Tribunal has not considered the legal aspect of the prima facie plea that whether cenvat credit is eligible or not in respect of inputs as well as finished products, as contended by the assessee. However, insofar as inputs consigned by branch office and the claim of service tax on the basis of ST-3 returns, we find that there are some prima facie case in favour of the Department. Therefore, pre-deposit requires to be ordered. The order of the Tribunal dated 07.01.2015 is modified to the effect that the appellant shall make a pre-deposit of ₹ 10,00,000/- (Rupees Ten Lakhs only) towards pre-deposit on or before 31.03.2015 - Decided partly in favor of assessee.

Summary

Issues:
1. Interpretation of provisions regarding service tax payment on billed amount or amount received by service provider.
2. Entitlement to avail credit on inputs supplied to job worker.
3. Justification of directing appellant to pre-deposit a specific amount.
4. Appellant's financial capability to pre-deposit the required amount.

Analysis:
1. The appellant challenged the Tribunal's order regarding the payment of service tax on the billed amount or the amount actually received. The Department relied on ST-3 returns showing a variance between billed and received amounts, demanding service tax based on the billed amount. The Tribunal ordered a pre-deposit of Rs. 20 lakhs. The High Court noted the arguable nature of the issue and directed a pre-deposit of Rs. 10 lakhs, considering the appellant's plea based on the actual amount received. The Court modified the Tribunal's order, emphasizing the need for reconciliation by the Tribunal.

2. The appellant contended the entitlement to cenvat credit on inputs supplied to a job worker, which the Department alleged was availed twice. The High Court acknowledged the legal aspect of this plea and the need for further examination by the Tribunal. While recognizing a prima facie case in favor of the Department regarding inputs consigned by the branch office and service tax claims based on ST-3 returns, the Court emphasized the importance of considering the appellant's claim for cenvat credit. The Court modified the pre-deposit amount, allowing some leverage based on the appellant's plea.

3. The Tribunal's decision to direct the appellant to pre-deposit a specific amount was questioned by the appellant, citing financial incapability due to operational closure. The High Court found the Tribunal's order lacking in considering the legal aspects of the appellant's plea regarding cenvat credit eligibility. The Court modified the pre-deposit amount, considering the appellant's claim and the need for a balanced approach in determining the pre-deposit requirement.

4. The issue of the appellant's financial capability to pre-deposit the required amount was raised, emphasizing the closure of operations. The High Court, while acknowledging the need for pre-deposit based on certain aspects favoring the Department, considered the appellant's claim for cenvat credit and modified the pre-deposit amount to Rs. 10 lakhs, providing relief to the appellant based on the specific circumstances and legal considerations.

In conclusion, the High Court modified the Tribunal's order regarding the pre-deposit amount, considering the legal aspects, appellant's claims, and the need for a balanced approach in determining the pre-deposit requirement during the pendency of the appeal.