2012 (12) TMI 702 - AT - Service Tax

Waiver of Pre-deposit Service tax, interest and penalty Certain taxable service were provided to SEZ by claiming benefit of N.No- 4/2004 Revenue argued that assessee is not maintaining separate records of receipt and utilization of input services for providing both taxable services and exempted service As per AO assessee entitled to utilize the credit only to the extent of 25% of the service tax on the taxable input service as per Rule 6(3) (c ) of the CCR, 2004 Assessee argued that he had paid the duty in respect of the taxable services provided to SEZ unit Held that - As the assessee paid the duty in respect of taxable service provided to SEZ units and are not claiming the benefit of notification. Therefore, prima facie the applicants have made out a case for waiver. Pre-deposit of the dues is therefore waived for hearing of the appeal. Stay granted

Summary

Issues:
Application for waiver of pre-deposit of service tax, interpretation of Rule 6(3)(c) of the Cenvat Credit Rules, 2004, maintaining separate records for input services, applicability of exemption notification for SEZ units.

Analysis:
The appellant filed an application seeking waiver of pre-deposit of service tax, interest, and penalty amounting to Rs.69,44,352/- for providing taxable services to SEZ units under Notification No.8/2004 as amended by Notification No.4/2004. The Revenue contended that since the appellant did not maintain separate records for input services and provided services to SEZ units claiming exemption, they are entitled to utilize credit only up to 25% of the service tax on taxable input services as per Rule 6(3)(c) of the Cenvat Credit Rules, 2004. However, the appellant argued that they have paid the duty for the services provided to SEZ units and are not availing the benefit of the notification, making the demand unsustainable.

The Revenue insisted that due to the lack of separate accounts and the provision of both taxable and exempted services by the appellant, the demand was valid under Rule 6(3)(c). The Tribunal, after hearing both sides, noted that the appellant had indeed paid the duty for the taxable services provided to SEZ units and was not claiming the notification benefit. Consequently, the Tribunal found that the appellant had established a prima facie case for waiver, leading to the waiver of pre-deposit for the appeal hearing. Therefore, the stay petition was allowed in favor of the appellant.

In conclusion, the judgment revolved around the interpretation of Rule 6(3)(c) of the Cenvat Credit Rules, 2004, concerning the maintenance of separate records for input services and the utilization of credit for services provided to SEZ units under specific notifications. The Tribunal's decision to grant the waiver was based on the appellant's payment of duty for the taxable services to SEZ units and their non-claiming of the notification benefit, indicating a valid case for waiver of pre-deposit for the appeal hearing.