ADMEC LOGISTICS LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) WE have heard both sides on the application for waiver of service tax of Rs. 1,66,227/ - together with interest and equal amount of penalty under Section 78 of Chapter V of the Finance Act, 1994. The demand has been confirmed against the assessees who provides maintenance and repair service, denying the benefit of abatement on the value of materials sold during the course of providing the service under Section 67 of the Act, in terms of Notification No. 12/03 -ST dated 20 -6 -03. The benefit of abatement has been denied on the ground that materials such as iron bents, screws, plates etc., were only used for performing repair work and not sold and the assessees had also not paid any sales tax upon the value of the materials claimed by them used during the course of providing the service of repairing containers. We find no prima facie case has been made out by the applicants as prima facie we do not see any merit in the submissions by the applicants that their admission of non -payment of sales tax does not lead to the conclusion that no sale of materials was taken place. Hence, the plea of the applicants cannot be accepted at this stage. Although the show cause notice alleges suppression of facts and such allegation was upheld by the authorities below, the applicants neither raised the plea against the charge of suppression of facts before the adjudicating authority nor before the lower appellate authority. We therefore, direct the applicants to pre -deposit the tax amount within a period of eight weeks from today and on such deposit, pre -deposit of the penalty stands waived and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in dismissal of the appeal. Compliance is to be reported on 7 -12 -2009.