ABB LTD. Vs. COMMR. OF SERVICE TAX, BANGALORE

JUDGEMENT

(1.) BOTH the stay applications pertain to the same appellants. Hence they are taken up together for common disposal. In the case of Appeal No. ST/347/07 in Stay application No. 236/07 the duty amount is Rs. 7,87,77,447/ -. This amount has been deposited. . There is an equal amount of penalty and other penalties for which appellants are seeking waiver of pre -deposit. The appellants contention is that the issue has been referred to the Larger Bench and when the matters are before Larger Bench then the issue is deemed to be contentious and in such circumstances, the Tribunal as a practice grants waiver of pre -deposit of duty and penalty. He submits that they have deposited the entire Service Tax amount and hence prays for waiver of penalty. He also submits that penalty is not leviable in the case as they have a strong case on merits. The matter referred to Larger Bench is CCE Raigad v. Indian Oil Tanking Ltd. [2008 (9) S.T.R. 147(T) = 2007 (83) R.L.T. 236 (CESTAT - Mum)].

(2.) HEARD learned SDR who submits that the appellants should pre -deposit part of penalty amount as they have already deposited the tax amount in the case. She submits that the revenue has a very strong case in view of some of the favourable orders of the Tribunal.

(3.) WE have carefully considered the submissions. We notice that the issue in this matter has been referred to Larger Bench. The appellants have already pre -deposited the service tax amounts. Therefore we are inclined to grant waiver of pre -deposit of penalty amount till the disposal of the appeal. Revenue is barred from recovery even after the lapse of 180 days in view of several judgements of the Supreme Court and the Tribunal. There shall be no recovery till the disposal of the appeal. ST/St/254/07, ST/372/07