2008 (4) TMI 166 - AT - Service Tax

Application for waiver of pre-deposit credit denied on ground that credit is available only on fixed phone, not on mobile pone - There was no ground in the SCN that the mobile phones services cannot be considered as input service if it is not used in or in relation to the manufacture of final product Since in the impugned order, the credit has been denied on a ground which was not mentioned in the SCN, prima facie the demand does not appear to be tenable hence stay is allowed

Summary

Issues: Application for waiver of pre-deposit of Service tax, Education Cess, and penalty based on interpretation of circulars and grounds beyond the show cause notice.

Analysis:
1. Waiver of Pre-deposit: The application sought waiver of pre-deposit of Service tax, Education Cess, and penalty totaling Rs. 82,915/-, Rs. 1,646/-, and Rs. 8,000/- respectively. The contention was that the denial of Service tax credit on mobile phones, based on the argument that mobile phone services do not qualify as input services, exceeded the grounds of the show cause notice. The applicant referenced Circular No. 59/8/2003-S.T. and Circular No. 97/8/2007-S.T. to support their claim that mobile phone services should be considered for credit under specific conditions.

2. Adjudicating Authority's Decision: The adjudicating authority denied the credit of mobile phone services, stating that there was no evidence to prove that the mobile phones were used in or in relation to the manufacture of finished goods. The applicant argued that the authority went beyond the scope of the show cause notice by introducing new grounds for denial, contrary to the principles established by the Supreme Court and Tribunal in previous cases.

3. Judicial Analysis: After hearing both parties, the Tribunal acknowledged that the show cause notice only mentioned the denial of credit based on the specific circular regarding fixed phones versus mobile phones. The Tribunal noted that the denial of credit on the basis of mobile phones not being used in or in relation to the manufacture of final products was not part of the original grounds of the notice. Citing relevant legal precedents, the Tribunal found that the demand appeared untenable due to the introduction of new grounds beyond the show cause notice. Consequently, the Tribunal granted the waiver of pre-deposit for the entire Service tax, Education Cess, and penalty amount, staying the recovery until the appeal's disposal.

This detailed analysis of the judgment highlights the key issues raised in the application for waiver of pre-deposit of Service tax, Education Cess, and penalty, emphasizing the interpretation of circulars and the limits of adjudicating authorities in expanding grounds beyond the show cause notice.