2008 (12) TMI 653

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..... ER This is an application for waiver of pre-deposit and stay of recovery of service tax to the tune of Rs. 3,18,554/-, applicable interest, equal amount of penalty imposed under Section 78 of the Finance Act (the Act) and penalty of Rs. 52,815/- imposed under Section 76 of the Act on the appellants. 2. The facts of the case are that during the period 1-1-2005 to 31-3-06, the appellants, M/s. Sak .....

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..... d been collected from the person liable to pay service tax. They had submitted declaration from the GTAs concerned evidencing their eligibility to benefit of Notification No. 32/2004-S.T., dated 31-12-2004. After hearing the arguments of the appellants, the Commissioner (Appeals) found that the appellants were liable to pay service tax in respect of GTA service availed by them, when they received .....

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..... d tax had been paid by the STAs and borne by the appellants. The appellant had not taken CENVAT credit of the service tax paid. Therefore, the demand of tax for the same service from the appellants was not sustainable. They had not paid service tax as the same had already been paid by the actual providers of service. As they had not paid the tax due on the bona fide belief that the same was not du .....

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..... notes which had apparently been furnished before the Commissioner (Appeals). These documents carry the endorsement evidencing GTAs not availing CENVAT credit or the benefit of Notification No. 12/2003-S.T. Therefore, the service involved in the proceedings has suffered the tax due. The argument of the appellants that once the Revenue had collected the tax due on the impugned service from the GTA, .....

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..... both the parties at the final hearing stage, pre-deposit of the impugned dues is waived and their recovery stayed pending final disposal of the appeal. This order of waiver and stay will stand withdrawn if the appellants do not furnish certificate of its not having taken the service tax paid for the service involved from the jurisdictional Range Superintendent by 15-12-08. The matter shall arise f .....

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