2012 (6) TMI 188 - AT - Service Tax

Waiver of pre-deposit - appellant requested for provisional assessment which was allowed by the department with effect from April 2005 - short payment of tax and the bank did not pay the interest on such short payment, interest has been demanded in the impugned orders In respect of interest for December 2007, show cause notice was issued in December 2009 and in respect of demand of interest for March 2008, show cause notice was issued in February 2010 Held that - appellant had filed ST-3 returns during the period of demand and the details were actually shown therein, limitation under Section 11A would apply for demand under Central Excise, requirement of pre-deposit of interest demands in the impugned orders is waived and stay of recovery is granted

Summary

Issues: Provisional assessment, short payment of tax, interest demand, waiver of pre-deposit, stay of recovery, limitation applicability.

Provisional Assessment: The appellant, holding Service Tax registration and discharging liabilities, requested provisional assessment which was allowed from April 2005. However, interest was demanded for short payments in December 2007 and March 2008, where the bank did not pay the interest, leading to the appeals.

Waiver of Pre-deposit and Stay of Recovery: The Counsel for the appellant argued against the sustainability of lower authorities' decisions. The main issue was whether pre-deposit should be waived and stay granted. The Tribunal found that the pre-deposit requirement could be waived and stay granted on the issue of limitation. Show cause notices were issued in December 2009 and February 2010 for interest demands, and the appellant had filed ST-3 returns during the period of demand, showing the details therein.

Limitation Applicability: The Departmental Representative argued that limitation is not applicable for the demand of interest, citing a Tribunal decision. In contrast, the Chartered Accountant for the appellant relied on a different case law where the Tribunal held that limitation under Section 11A would apply for demands under Central Excise, supported by a Supreme Court decision. The Tribunal considered the appellant's prima facie case in their favor based on the decision of the Tribunal in another case, leading to the waiver of pre-deposit and grant of stay on the ground of limitation.

This judgment from the Appellate Tribunal CESTAT, Bangalore, dealt with the issues of provisional assessment, interest demand for short payments, waiver of pre-deposit, stay of recovery, and the applicability of limitation in a Service Tax matter. The Tribunal allowed the waiver of pre-deposit and granted a stay of recovery during the appeals process based on the appellant's prima facie case and the applicability of limitation under relevant case laws.