2015 (8) TMI 1010 - HC - Service Tax

Waiver of pre deposit - Denial of CENVAT Credit - input services and capital goods - Held that - There appears to be a decision of the Andhrapradesh High Court in the case of Commissioner of Central Excise, Visakhapatnam-II Vs. Sai Sahmita Storages (P) Ltd. reported in 2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT . In any event, on this arguable issue, the Tribunal, Ahmedabad Bench had earlier granted waiver of pre-deposit in the case of Navratna S.G.Highway Properties Pvt. Ltd. Vs. Commissioner of service Tax, Ahmedabad reported in 2012 (7) TMI 316 - CESTAT, AHMEDABAD . Therefore, insofar as the claim of cenvat credit in respect of input services of erection, commissioning or installation service and construction services, the appellant had prima facie case on hand. - Predeposit amount reduced - Decided partly in favour of assesee.

Summary

Issues Involved:
1. Ignoring jurisdictional High Court decisions.
2. Ordering pre-deposit without considering financial hardship.
3. Justification of pre-deposit amount.
4. Prima facie case for waiver of pre-deposit.
5. Sustainability of the Tribunal's order.

Detailed Analysis:

1. Ignoring Jurisdictional High Court Decisions:
The appellant contended that the Tribunal ignored the decisions of the Madras High Court and instead followed the Bombay High Court's decision in Bharti Airtel Vs. Commissioner of Central Excise, Pune. The Tribunal justified its stance by citing that the Bombay High Court's decision directly addressed the issue of denial of CENVAT Credit on tower and civil material, which was relevant to the case at hand.

2. Ordering Pre-Deposit Without Considering Financial Hardship:
The appellant argued that the Tribunal did not adequately consider their plea of financial hardship, citing an accumulated loss of Rs. 12,632.40 crores. The Tribunal's order for an Rs. 8 crore pre-deposit was challenged on the grounds of undue hardship. The Court found merit in the appellant's claim of financial hardship, referencing the Supreme Court's decision in Benara Valves Ltd. v. CCE, which emphasizes the need to consider undue hardship and safeguard the interests of the Revenue.

3. Justification of Pre-Deposit Amount:
The Tribunal ordered a pre-deposit of Rs. 8 crores, less than 50% of the total demand of Rs. 18.90 crores. The appellant argued that this amount was excessive given their financial condition. The Court modified the Tribunal's order, requiring a pre-deposit of Rs. 6,65,81,395, which is the amount related to credit denied on capital goods. The appellant was directed to deposit 50% of this amount within four weeks and the remaining 50% within another four weeks.

4. Prima Facie Case for Waiver of Pre-Deposit:
The Tribunal held that the appellant did not make out a prima facie case for total waiver of pre-deposit. The Court found that the appellant had a prima facie case concerning the input services of erection, commissioning, or installation service and construction services, referencing the Andhra Pradesh High Court's decision in Commissioner of Central Excise, Visakhapatnam-II Vs. Sai Sahmita Storages (P) Ltd. and the Ahmedabad Bench Tribunal's decision in Navratna S.G. Highway Properties Pvt. Ltd. Vs. Commissioner of Service Tax, Ahmedabad.

5. Sustainability of the Tribunal's Order:
The Court concluded that the Tribunal's order was not justified in its entirety and required modification. The modified order stipulated a reduced pre-deposit amount and provided a structured timeline for compliance, ensuring that the appellant's financial hardship was considered while safeguarding the interests of the Revenue.

Conclusion:
The appeals were ordered with the modified terms for pre-deposit, and the connected Miscellaneous Petitions were closed. The Tribunal's order was adjusted to balance the appellant's financial hardship with the need to safeguard the Revenue's interests.