2008 (5) TMI 147 - AT - Service Tax

Appeal restored after delay excuse, tax waiver based on circular, stay granted.

The appeal was restored after the applicant obtained clearance from COD. The 85-day delay in filing the appeal was excused. Pre-deposit of Service Tax and ... Restoration of appeal - Condonation of delay - Waiver of pre-deposit of tax and penalty - Stay of recovery - Service tax applicability to Interconnection Usage Charges - Effect of departmental circularRestoration of appeal - Dismissal of the appeal for want of clearance from COD was recalled and the appeal was restored on production of the requisite clearance. - HELD THAT: - The Tribunal examined the applicant's production of the necessary clearance from COD after the appeal had been dismissed for want of such clearance. Upon satisfaction that the required clearance has now been furnished, the Tribunal recalled the final order which had dismissed the appeal and restored the appeal to its original number, allowing the restoration application. [Paras 1]Final order dismissing the appeal is recalled and the appeal is restored to its original number; ROA allowed.Condonation of delay - Delay of 85 days in filing the appeal was condoned. - HELD THAT: - The Tribunal considered the reasons explained in the applicant's application for delay and found them sufficient to excuse the 85 days' delay in filing the appeal. In view of the explanation offered, the Tribunal exercised its discretion to condone the delay. [Paras 2]Delay in filing the appeal of 85 days is condoned.Waiver of pre-deposit of tax and penalty - Service tax applicability to Interconnection Usage Charges - Effect of departmental circular - Stay of recovery - Pre-deposit of the amount of Service Tax and penalties was waived and stay granted because a departmental circular indicated that service tax was not applicable on Interconnection Usage Charges prior to the effective date of the amended telecommunication service. - HELD THAT: - The Tribunal noted that the demand related to Interconnection Usage Charges (IUC). It relied on the departmental circular dated 12-3-2007 which clarified that, prior to the date when the amended telecommunication service came into effect in 2007, service tax was not applicable on IUC. In light of that circular, the Tribunal concluded that the requirement of pre-deposit of the contested service tax and penalties could be waived and accordingly allowed the stay petition. The matter was directed to be listed with the specified appeal number. [Paras 3]Pre-deposit of Service Tax and penalties waived; stay petition allowed and appeal to be listed with Appeal No. ST/139/2007.Final Conclusion: The Tribunal recalled the dismissal and restored the appeal on production of COD clearance, condoned an 85 day delay, waived the pre-deposit of contested service tax and penalties relying on the departmental circular that IUC was not taxable prior to the amended telecommunication service coming into effect, and granted stay; appeal to be listed accordingly. The appeal was restored as the applicant provided necessary clearance from COD. The delay of 85 days in filing the appeal was condoned. Pre-deposit of Service Tax and penalties waived due to a circular clarifying non-applicability of tax on IUC before 2007. Stay petition allowed, appeal listed with Appeal No. ST/139/2007.