2008 (1) TMI 323 - AT - Service Tax

Application seeking stay of the order of Addl. Commissioner in which appellant was directed to deposit a sum of Rs. 5,00,000 - service was rendered and payment was also made outside and no part of the activity took place within India whether demand from assessee is justified in view of CBEC Circular dated 8-10-2001, prima facie case is made out in favour of the appellant and we are, therefore, satisfied that it was entitled to complete waiver

Summary

Issues:
Non-compliance with pre-deposit order under section 35F of Central Excise Act, 1944; Applicability of service tax on activities outside India; Consideration of undue hardship for waiver of pre-deposit requirement.

Analysis:

1. The appeal was filed against the order of the Commissioner (Appeals) dismissing the appellant's appeal for non-compliance with the pre-deposit order under section 35F of the Central Excise Act, 1944. The appellant was directed to deposit Rs. 5,00,000, which was not complied with, leading to the dismissal of the appeal on 22-5-2007.

2. The Tribunal found that the order could not be sustained and the matter needed to be reconsidered on merit by the Commissioner (Appeals). Referring to a circular of the Central Board of Excise & Customs, it was clarified that service tax extends to the whole of India, including territorial waters. In this case, the service was rendered and paid for outside India, which exempted the appellant from paying service tax on that portion.

3. The Departmental Representative (DR) relied on a Supreme Court decision to argue that waiver of pre-deposit can only be granted in cases of undue hardship. However, the Tribunal emphasized that a prima facie case in favor of the appellant justified a complete waiver of the pre-deposit requirement, as supported by the observations in the judgment.

4. Considering the strong prima facie case of the appellant, the Tribunal set aside the orders directing the pre-deposit of Rs. 5 lakhs and directed that the appeal should be heard on merit without requiring any pre-deposit. The appellant was entitled to a complete waiver based on the circumstances presented.

5. The appeal was allowed on the grounds of the appellant's prima facie case and the waiver of pre-deposit requirement. The Tribunal clarified that the order did not express a concluded opinion on the merit of the case, focusing solely on the procedural aspects and the waiver of pre-deposit.