ORDER
S.L. Peeran, Member (J)
1. The appellant is seeking waiver of penalties of (i) Rs. 28,00,000/- under Section 78 of the Finance Act, 1994; (ii) Rs. 15,00,000/- under Rule 15(4) of Cenvat Credit Rules, (iii) Rs. 10,000/- under Rule 15(3) of Cenvat Credit Rules; (iv) Rs. 200/- per day under Section 76 of the Finance Act, 1994; and (v) Rs. 1000/- under Section 77 of the Finance Act. The appellants were alleged to have carried on the services of ‘Manpower Recruitment Agency’ and have received the payments in foreign exchange from the BPOs. They were proceeded against for recovery of the Service Tax to an extent of Rs. 17,43,065/-. The appellants could not produce the proof of receipt of any foreign exchange to claim the benefit of the Notification granting exemption from levy of Service Tax. For lack of production of the evidence, the demands have been confirmed. The appellants have deposited the Service Tax and are now praying for waiver of the deposit of penalties.
The learned Counsel submits that they are gathering the evidence from various banks through which the transaction has been done and they would produce the evidence at the final stage. He submits that the appellants have a strong case to succeed, as they are fully eligible for exemption in terms of the Notification, as the payments have been received in foreign exchange.
2. The learned JDR submits that there are three issues involved in this matter. That the proof was not produced despite opportunities given and, therefore, they were liable to pay the tax and penalty was rightly imposed. The learned JDR further submits that they have availed higher credit @ 100% instead of 20%, which is also required to be reversed for an amount of Rs. 10 lakhs. The learned Counsel submits that even for this, they will produce evidence and satisfy the Bench at the final stage. He submits that as the Service Tax of Rs. 17,43,065/- has been paid, waiver of penalty, tax and other issues be granted.
3. We have considered the submissions and we notice that since the Service Tax has been deposited. The appellant’s claim for exemption was not supported by evidence. The appellants contend that they have received all the payments in foreign exchange and they are eligible for the benefit of exemption. They have assured the Bench to produce the evidence at final stage, as they are in the process of collecting the evidence from various Banks. There is no reason to disbelieve their version. As the tax has been deposited, the plea for waiver for the balance and reversal of credit and for deposit of penalty is accepted. There shall be no recovery in the matter till the disposal of the appeal. Appeal to come up in its turn. Stay application allowed.
(Pronounced and dictated in open Court)