ORDER
S.L. Peeran, Member (J)
1. The appellant is required to pre-deposit Service Tax of Rs. 21,26,424/- and various penalties imposed in the impugned orders. The appellants were covered under the category of “Outdoor Caterer” in terms of Section 65(76) of the Finance Act. They were eligible for the benefit of abatement as per Notification No. 20/2004-ST dated 10.09.2004. The allegation is that after granting them abatement, still the total value of taxable service works out to Rs. 3,17,90,006/- on which the tax has not been paid.
2. The appellant’s contention is that they are eligible for taking the benefit of Notification No. 12/2003-ST dated 20.06.2003 which grants exemption on the value of the goods and materials sold by service provider to the recipient of service. It is submitted that the invoices had shown the value of goods and materials sold on which the VAT had been paid. Therefore, the total amount of goods sold was required to have been deducted which has been done by them. The calculation has been correctly arrived at by them and the amounts are paid in terms of Notification 12/2003. Further, the commissioner has noted that they did not produce the documentary evidence. The learned Counsel refers to the invoices, which show the amount of VAT paid by them in each invoice. He submits that this question Further, the finding that they are not eligible for the benefit of Notification 12/2003 is not correct in view of large number of judgments and the Board’s Circular. He produced a copy of the invoices. He submits that the issue is covered in his favour.
3. The learned SDR reiterated the findings of the Commissioner and submits that documentary proof was not produced and the Commissioner was justified in rejecting their claim.
4. Prima facie, we notice from the invoices that the appellants have paid VAT on goods and materials sold. The same was eligible for deduction in terms of the Notification No. 12/2003 and number of the judgments, which support this plea. The issue is prima facie covered. Hence, the stay application is allowed granting waiver of pre-deposit and staying the recovery till the disposal of the appeal. As the issue is covered, the matter is to be heard on 31st January, 2008 for final disposal.
(Pronounced and dictated in open Court)