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2015 (5) TMI 35 - CESTAT NEW DELHI

2015 (5) TMI 35 - CESTAT NEW DELHI - TMI - Waiver of pre deposit - 'business support service' - Held that:- On perusal of one of the inspection orders which reveals that the inspection was to verify compliance to good practices in accordance with law. It can be nobody's case that inspecting agency which only inspected the facility without rendering any advice could be covered under the category of management or business consultant as they did not provide any service directly or indir .....

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G. Raghuram , President And R. K. Singh, Member (T),JJ. For the Petitioner : Shri Manish Gaur & Shri Karan Sachdeva , Advs. For the Respondent : Ms Suchitra Sharma, DR ORDER Per: R K Singh: Stay application along with appeal has been filed against Order-in-Original No. 13-14/GB/2013 dated 31.1.2013 in terms of which a service tax demand of ₹ 4 ,81,35,690 /- was confirmed and also Cenvat credit amounting to Rs . 31,46,703/- held to have been used in excess was ordered to be recovered, .....

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es of business or commerce 65,36,718/- 2007-2010 3. Clinical Trials undertaken Section 65(105) (zzh) Technical testing & analysis 50,28,051/- April 2005 to April 2006 4. Alleged short payment of service tax in comparison to the annual accounts 39,99,989/- 2007-2008 5. Excess utilization of Cenvat credit 31,46,703/- 2007-2008 6. Short payment comparing gross amount billed and received as reflected in the ST-3 Returns 5,95,672/- April 2006 to September 2006 7. Reverse charge demand on the ANVI .....

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thority merely on the ground that the said agreement was only for camouflaging their activity of providing business support service. The ld. DR also drew our attention to this. However, the adjudicating authority has not even indicated as to on what basis the facility purchase agreement has been held to be bogus or non-genuine. Prima facie whole facility has been sold and so the consideration received on account of sale proceeds cannot be said to be for providing 'support service of business .....

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t free advance which was repayable. Indeed there is evidence of re-payment in the form of letters dated March to Feb 23.5.2013 showing repayment of two instalments . In any case unless it is established that the interest free loan was camouflaging the consideration received for providing service, the amount of loan cannot be taken to be the payment for providing taxable service and thus prima facie the confirmation of this component of demand seems to lack sustainable basis warranting waiver of .....

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ospective and hence the services covered there-under were not liable to service tax prior to 1.5.2006 as is the case here. As prima facie their case is covered by the said judgement there is sufficient ground to waive the requirement of pre-deposit of this component of demand. 5. As regards the fourth and sixth component of demand relating to alleged short payment of service tax in comparison to the annual accounts, the appellants have stated that the impugned demand has been confirmed on the gr .....

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t with the appellants contention and has confirmed the impugned demand on the ground that they had not disclosed as to when the said amount was received by them and when they paid service tax on that amount. While so observing, the adjudicating authority seems to have lost sight of the fact that the onus is primarily on the Revenue to establish short payment. Thus, sufficient ground exists to waive pre- deposit of this component of demand also. 6. Regarding the fifth component of the impugned de .....

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