BEST AND CO. Vs. COMMISSIONER OF SERVICE TAX

JUDGEMENT

(1.) ON hearing both sides on the application for waiver of pre -deposit of service tax of Rs. 8,36,27,487/ - together with interest and penalties of Rs. 50,00,000/ - under Section 78, and Rs. 100/ - per day up to 18 -4 -2006 and Rs. 200/ - per day from that date onwards or 2% of the service tax and Education Cess whichever is higher, under Section 76 of the Finance Act, 1994, we find that a strong prima facie case for waiver of pre -deposit, has been made out by the applicants in the light of the judgment of the Hon'ble Apex Court in Sunrise Associates v. Govt. of NCT of Delhi and Ors. : (2006) 5 Supreme Court Cases 603 which has been followed by the Hon'ble Sikkim High Court in Martin Lottery Agencies Ltd. v. Union of India : 2007 (8) S.T.R. 561 (Sikkim), holding that lottery tickets are not goods liable to sales tax but are actionable claims. [The High Court has set aside the service tax demand.] The appeal of the Revenue against the judgment of the Hon'ble Sikkim High Court has been heard by the Apex Court and the judgment has been reserved on 4 -9 -2008.

(2.) IN these circumstances, we waive pre -deposit of the amounts in question and stay recovery thereof during the pendency of this appeal.