2008 (2) TMI 149 - AT - Service Tax

Activity of manufacture and sale of ready made garments bearing brand names - Revenue has proceeded to demand service tax under the category of Intellectual Property Services for the reason that they were obtaining technical information, material specifications, instructions standards processing procedures & techniques for manufacturing the garments assessee not been given an opportunity of hearing - stay application is allowed - matter is required to be remanded to the Commissioner

Summary

Issues:
1. Waiver of pre-deposit of service tax amount and penalty.
2. Applicability of service tax on activities related to manufacture and sale of garments.
3. Denial of input service credit due to output service provided by foreign service providers.
4. Opportunity of hearing not granted before passing the order.

Analysis:
1. The appellant sought waiver of pre-deposit of service tax amount and penalty. The Revenue demanded service tax under the category of "Intellectual Property Services" based on the technical information and procedures obtained for manufacturing garments. The appellants argued that this activity does not fall under the service tax net. They also raised concerns about the order being passed ex-parte without a hearing. The Commissioner rejected the benefit of input service, stating that the output service was provided by foreign service providers. The appellants contended that the credit should not be denied. The Tribunal considered these arguments and granted waiver of pre-deposit, staying the recovery until the appeal's disposal.

2. The learned DR highlighted that the appellants were given multiple opportunities for a personal hearing, which they did not attend. The Commissioner proceeded to pass the order after considering all grounds, claiming it to be a speaking order. Since the appellant did not plead financial hardship, the DR argued that the appellant should comply with the terms. However, the Tribunal found that the appellant relied on a judgment and raised valid grounds regarding the denial of credit without a hearing. As a result, the Tribunal allowed the stay application, granting waiver of pre-deposit and staying the recovery until the appeal's final disposal, which was scheduled for a future date.

3. The appellants' contention regarding the denial of input service credit due to the output service being provided by foreign service providers was crucial. They argued that the Cenvat Credit Rules clearly stated that credit is not admissible when no output service/taxable service is provided by the assessee. The Tribunal acknowledged the importance of considering this plea, especially since the appellants were not given an opportunity of hearing. Consequently, the Tribunal allowed the stay application, emphasizing the need to remand the matter to the Commissioner for further review.

4. The Tribunal's decision to grant waiver of pre-deposit and stay the recovery until the appeal's disposal was based on a thorough consideration of the appellant's arguments, including the lack of opportunity for a hearing and the validity of the denial of input service credit. By accepting the plea and allowing the stay application, the Tribunal ensured a fair process by remanding the matter to the Commissioner for a comprehensive review, with the final hearing scheduled for a specific date.