2015 (10) TMI 1579 - HC - Service Tax

Waiver of Pre-deposit with interest and penalty whether tribunal has erred in directing pre-deposit Appellant contends that such PSU s are not called for pre-deposit but interest of justice is protected by taking an undertaking or bond Respondent contends that appeal does not involve any substantial question of law and discretion found at initial stage need not be interfered. Held That - Observations made by the Tribunal are tentative and only for the purpose of disposal of the application seeking waiver of condition of pre-deposit and beyond that, Court shall not influence the Tribunal while deciding the Appeal finally Time to deposit the sum extended Decided in favour of Revenue.

Summary

Issues:
Challenge to order for waiver of pre-deposit of service tax.

Analysis:
The Appeal was filed by the Board of Trustees of Jawaharlal Nehru Port Trust against an order by the Customs, Excise and Service Tax Appellate Tribunal, Mumbai, regarding the waiver of pre-deposit of service tax amounting to Rs. 1,64,01,668/- along with interest and penalty. The Appellant's counsel argued that the Tribunal erred in directing the pre-deposit amount without considering the substantial sum of Rs. 8,766,774/- relating to services not provided, as per Rule 6 of the Service Tax Rules, 1994. The counsel contended that the Tribunal's decision raised a substantial question of law warranting admission of the Appeal.

The High Court examined the Tribunal's order, the impugned orders, and the arguments presented by both parties. The Appellant, being a Public Sector Undertaking, also invoked a previous court order stating that such undertakings may not be required to deposit the sum, proposing instead to provide an undertaking or bond. On the other hand, the Respondent's counsel argued that the Tribunal's decision did not raise any substantial question of law and should be upheld, as the Tribunal did not ignore the material on record or make any perverse findings.

Upon reviewing the Tribunal's decision, the High Court found that the Tribunal had considered the application for waiver of pre-deposit and had referred to the Commissioner's order, which concluded that the Appellants were not entitled to the benefit of adjustments under Rule 6 of the Service Tax Rules, 1994. The Commissioner noted that most credit notes issued by the Appellants did not relate to non-provision of services, except in specific cases. The Tribunal's prima facie findings that a complete waiver was not justified were deemed appropriate, as the Tribunal's role was limited to determining whether the case warranted relief from pre-deposit conditions.

Regarding the alternate plea for the Appellant not to deposit the entire sum but to execute a general bond, the High Court noted that the precedent cited did not establish a general rule for waiving pre-deposit for Public Sector Undertakings. The Court clarified that its observations were provisional and should not influence the Tribunal's final decision on the Appeal. The Appeal was ultimately dismissed, and the Appellant was granted an extension to deposit the required amount under the Tribunal's order.