In the case of activities sought to be classified under site formation service our prima facie view is that this activity is classifiable as mining activity and liable to service tax only from 1-6-2007 and such tax is being paid. Demand of service tax under site formation service does not appear to be prima facie maintainable in this case where during the relevant period the definition did not cover the activity specifically and later a specific entry is introduced to cover the activity. So at this prima facie stage, we find that the appellants have made out a strong case for waiver of pre-deposit of dues arising from the impugned order for admission of appeal. We order so and there shall be waiver on collection of such dues during the pendency of the appeal.
It is the contention of the applicant that they have paid the amount in excess in the month of April 2004 and May 2004. We are therefore of the view the fact regarding excess payment is required to be verified by the Commissioner (Appeal). Accordingly we waive the pre-deposit and remand the case back to Commissioner for decision on merit after ascertaining the excess deposit of Rs. 14,451/- as service tax as contended by the applicant. Stay petition as well as Appeal are disposed of by way of remand.
Notice of dismissal was issued on 29-2-2012 to show cause as to the reason why appeal of the appellant should not be dismissed for non-compliance with the stay order.
The order impugned before the Commissioner was received by the appellant on 04.09.2010 and the appeal was filed on 11.08.2011. Commissioner (Appeals) has observed that there is no provision under Section 85 of the Finance Act, 1994 to condone the delay beyond the period of three months on expiry of the limitation period.
The disputed issue relating to inclusion of cost of materials used for providing photographic services, which stands decided against the appellant by a Larger Bench decision of the Tribunal in the case of Aggarwal Colour Advance Photo System v. CCE [2011] 33 STT 33.
It also appears that there is abuse of process of law by mere filing appeal and depriving Revenue to realise its dues availing benefit of interim order. This reason is enough to dismiss the appeals also. Accordingly, both the appeals are dismissed.
Vide section 97 of the Finance Act, 2012, such activity was granted retrospective exemption w.e.f. 16.06.2005 to 26.06.2009. Inasmuch as the period involved in the present matter is from 31.01.2006 up to 18.04.2006, we hold that the appellant is not liable to pay any service tax on the activities of repair and maintenance of roads.
If there is any defect in appeal, in terms of the procedure prescribed by rule 4.03 of Chapter 4 of Judicial Manual, that defect may be intimated to the appellant for curing the same without compulsion since curable defects do not take away right to appeal. Therefore, such valuable right should not be casually denied on flimsy ground of technicalities without scrutiny according to procedure prescribed by Judicial Manual.
CENVAT Credit cannot be denied merely on the ground that HO who raised invoice was not registered under central registration during material period It is to be held that final rejection of centralized registration vide letter dated 26-5-2006 cannot be held to be a justifiable reason for denial of the credit. Apart from the fact that during the said period, the application was pending in the office of Deputy Commissioner, without their being any decision taken by him on the same, 1 find that there is otherwise no dispute about the availability of the credit to the appellant. The substantial benefit, if otherwise available, cannot be denied on the technical and procedural grounds. As such, in the absence of any dispute that the appellant was otherwise entitled to the benefit of Cenvat credit of Service Tax paid on GTA services, so received by them, the denial of the same on the ground that the credit was availed on the basis of invoices raised by their head office is neither justifiable nor warranted.
Looking to the legislative intent it is not possible to say that the risk covered by insurance service received shall not enjoy Cenvat credit of service tax paid on such service. No doubt, the insurance service may be indirectly connected to the manufacturing or other activity but that may be in relation to manufacture or various other business activities enumerated in Rule 2(l) of Cenvat Credit Rules, 2004.
