ULTRA SERVICES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) I have heard both sides on the applications for waiver of pre -deposit of service tax of Rs. 12,958/ - plus education cess of Rs. 259/ - (in Appeal No. S/299/2008) and penalty of Rs. 5,000/ - under Section 76 and Rs. 13,217/ - under Section 78 of the Finance Act, 1994 respectively and service tax of Rs. 34,943/ - plus education cess of Rs. 699/ - (in Appeal No. S/300/2008) together with a penalty of Rs. 10,000/ - under Section 76 of the Finance Act, 1994. The first demand covers the period from 10 -9 -2004 to 31 -3 -2005 and the second demand is for the period 1 -4 -2005 to 31 -3 -2006.

(2.) THERE is prima facie force in the submission of the applicants that the first demand is not sustainable prima facie for the reason that the applicant is an individual i.e., proprietor of M/s. Ultra Service and prima facie the applicant is entitled to the exemption in terms of Notification No. 14/2004 -ST dated 10 -9 -2004. Although this plea of eligibility to exemption was raised by the applicants before the lower appellate authority, no finding has been recorded by the Commissioner (Appeals) on this. Since there is prima facie substance in the argument raised on this score, 1 waive pre -deposit of service tax of Rs. 12,958/ - plus education cess of Rs. 259/ - together with penalties of Rs. 5,000/ - and Rs. 13,217/ - and stay recovery thereof pending the appeal in S/299/2008. As regards the second appeal, no strong prima facie case for total waiver on the ground of eligibility to exemption in terms of Notification No. 6/2005 -S.T., dated 1 -3 -2005 has been made out - this is for the reason that prima facie the applicants have not fulfilled the condition laid down thereunder of non -use of brand name/trade name of another person as they used the brand name of Eureka Forbes Ltd. The plea of limitation is also prima facie not tenable as the applicants have not made out a prima facie case on the basis of their bona fide belief that they were not liable to pay service tax. In the circumstances, I direct pre -deposit of the amount of Rs. 35,642/ - (Rupees Thirty Five Thousand Six Hundred and Forty Two only/ -) being the service tax confirmed together with the education cess within a period of 4 weeks from today and on such deposit the pre -deposit of the penalties shall stand waived and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal No. S/300/2008 without further notice.