2013 (8) TMI 372 - AT - Service Tax

Period of limitation - Admissibility of Input Service Credit department was of the view that construction of residential quarters/hostels for their employees as same does not qualify under Section 2(1) of the CENVAT Credit Rules, 2004 Held that - They were under the bonafide belief that they were entitled for input service credit was reversed and they availed input service credit as decided in CCE, vs Manigarh Cement (2010 (10) TMI 10 - BOMBAY HIGH COURT) - the applicant has made out a case on limitation. Waiver of pre deposit court allowed waiver of pre-deposit stay granted - application decided in the favour of the assessee.

Summary

Issues:
1. Waiver of pre-deposit of demands confirmed due to inadmissibility of input service credit for construction of residential quarters/hostels.
2. Barred by limitation - Bonafide belief of entitlement to input service credit based on previous Tribunal decision and subsequent High Court decision.
3. Knowledge of department regarding input service credit in 2011 during audit leading to extended period of limitation.

Analysis:
1. The judgment deals with the issue of the applicant seeking waiver of pre-deposit of demands confirmed against them due to the inadmissibility of input service credit for the construction of residential quarters/hostels for their employees. The applicant argued that they were under a bonafide belief of entitlement to the credit based on a previous Tribunal decision, which was later reversed by the High Court. The Tribunal considered the submissions and waived the requirement of pre-deposit, allowing a stay on recovery during the appeal.

2. The issue of limitation arose concerning the department's knowledge of the input service credit in 2011 during an audit. The applicant contended that their belief in entitlement to the credit was based on the Tribunal's decision before the High Court reversal. The department argued for an extended period of limitation due to the late discovery. However, the Tribunal sided with the applicant, considering their bonafide belief and the timing of availing the credit in March 2009, ultimately granting the waiver of pre-deposit.

3. The Tribunal carefully weighed the arguments presented by both sides regarding the limitation aspect. The applicant's reliance on the Tribunal's previous decision and the subsequent High Court ruling played a crucial role in the Tribunal's decision to waive the pre-deposit requirement. Despite the department's contention on the extended period of limitation, the Tribunal found merit in the applicant's position and granted relief by staying the recovery of the duty, interest, and penalty during the appeal process.