2009 (7) TMI 1005 - AT - Central Excise

Summary

Issues involved: Application for waiver of pre-deposit of tax u/s 76, 77, and 78 of Chapter V of the Finance Act, 1994 due to non-compliance with Section 35F of the Central Excise Act, 1944.

Summary:

1. The judgment pertains to an application for waiver of pre-deposit of tax amounting to Rs. 3,39,469/- along with interest and penalties imposed u/s 76, 77, and 78 of the Finance Act, 1994. The demand was confirmed by the Deputy Commissioner concerning royalty paid to a foreign service provider on 24-2-2006. The Commissioner (Appeals) dismissed the appeal due to non-compliance with the statutory requirement of Section 35F of the Central Excise Act, 1944, which mandated the deposit of tax amount and penalties as directed by way of pre-deposit.

2. The applicants argued that the payment made in 2006, before the inclusion of 'intellectual property service' under the service tax net from 10-9-2004, should not be subject to tax. However, the Tribunal found this argument untenable as royalty constitutes a continuous intellectual property service even after 10-9-2004. The evidence presented, including a letter dated 14-8-2003, indicated ongoing payment schedules for intellectual property services. The plea of limitation was also rejected as the assessees were deemed to have prima facie suppressed and concealed the value of taxable services to evade tax payment.

3. Consequently, the Tribunal directed the appellants to deposit Rs. 1,00,000/- towards the tax demand within four weeks. Upon this deposit, pre-deposit of the remaining amounts would be dispensed with, and the recovery thereof stayed pending the appeal. Failure to comply with this directive would lead to the vacation of stay and dismissal of the appeal without prior notice.

4. The appellants were instructed to report compliance by 7-9-2009. The judgment was dictated and pronounced in open court by Jyoti Balasundaram, Vice-President.