2011 (7) TMI 741 - AT - Service Tax

Appellants Win: Prima Facie Case Established for Waiver of Pre-deposit

The Tribunal found in favor of the appellants, ruling that they had established a prima facie case for waiver of pre-deposit amounts. The Tribunal ... Waiver of pre-deposit - on the ground that the appellant is not eligible for availing abatement of 75% of the value of the freight charges, as they have not given the declaration on the consignment notes as required by law - It is undisputed in these four cases the question is of eligibility to 75% abatement of the freight charges by the goods transport agency a service provider - Held that: even Board Circular No. 37B also indicates that the procedure prescribed in the Board Circular, is that a declaration by the service provider, in all such cases, on the consignment note, to the effect that the conditions of the aforesaid exemption notification have been satisfied, would be sufficient for availing of the benefit under the said notifications - Decided in favor of the assessee Issues:1. Eligibility for availing abatement of 75% of the value of freight charges.2. Compliance with the conditions laid down in Notification No. 32/04-S.T.3. Interpretation of Board Circular No. 37B regarding the procedure for declaration on consignment notes.4. Prima facie case for waiver of pre-deposit of amounts.Analysis:1. The adjudicating authority confirmed certain amounts due to the appellant's alleged ineligibility for availing the 75% abatement on freight charges, citing non-compliance with declaration requirements on consignment notes.2. The appellant argued that they provided consolidated declarations about non-availment of Modvat credit in accordance with Notification No. 32/04-S.T. They referenced previous decisions by the coordinate Bench and argued for unconditional waiver based on similar cases.3. The Joint CDR contended that the procedure for availing the 75% abatement must strictly adhere to the requirements specified in Notification No. 32/2004-S.T. and Board Circular No. 37B. He emphasized the statutory nature of the circular and highlighted the importance of the declaration on consignment notes.4. Upon reviewing submissions and records, the Tribunal acknowledged the issue of eligibility for the 75% abatement on freight charges, emphasizing the necessity of a declaration confirming non-availment of Cenvat credit by the service provider. The Tribunal found support for the appellant's case in previous decisions and the interpretation of Board Circular No. 37B, noting that the endorsement on consignment notes was a sufficient condition, not a mandatory one.5. Ultimately, the Tribunal concluded that the appellants had established a prima facie case for waiver of the pre-deposit amounts in question. The stay petitions for waiver were allowed, and recovery of the amounts was stayed pending the appeal process.