HARIOM BUILDERS Vs. CCE

JUDGEMENT

(1.) LEARNED advocate submits that out of the total service tax demand of Rs. 12,43,163/ -, the appellant has deposited Rs. 11,98,878/ - and has paid the amount towards interest also. He submits that difference between the two amounts is due to the claim of the appellant that the service tax demanded from them has to be treated as cum service tax realization. He submits that the amount deposited by the appellant may be treated as sufficient for the purpose of pre -deposit and stay petition be allowed. Learned SDR submits that the payment was not voluntary in this case and only after the appellant was caught by the department, they chose to make the payment and therefore in terms of decision of the Tribunal in case of CCE, Indore v. Deepak Spinners Ltd. as reported in : 2005 (179) ELT 93 (Tri -Del.), penalty is imposable on the appellant and since the penalty is imposable, the appellant should be required to deposit the penalty also. At this stage, the learned advocate submits that they are contesting the service tax liability also.

(2.) IN view of the discussion above, treating the deposit made by the appellant as sufficient for the purpose of pre -deposit under Section 35F of Central Excise Act, 1944 made applicable to service tax matters under Section 83 of Finance Act, 1994, we waive the requirement of pre -deposit of penalty and allow the stay petition during the pendency of the appeal.