[Order per : S.L. Peeran, Member (J) (Oral)]. - The appellant is required to pre-deposit Service Tax of Rs. 6,71,37,411/-, Education Cess of Rs. 13,27,764/- and penalty of Rs. 13,69,30,350/-. The appellants were carrying on the activity of manufacture, erection, commissioning and installation of Centralized Air-Conditioning System. They are discharging excise duty on the items manufactured by them. However, revenue has proceeded against them for recovery of Service Tax under the category of Erection, Commissioning and installation. The submission of the appellants is that they have already paid excise duty and question of recovering Service Tax does not arise, has not been accepted by the revenue. They also submitted that value of the materials sold were exempted by Notification No. 12/2003. This prayer has also not been considered.
2. The matter was heard on 12-3-2007, on which date the learned Counsel had relied on the ruling rendered by this bench on this very issue in their own case reported in (Tribunal) = 2007-TIOL-38-CESTAT-BANG. However, the JDR had prayed for time to file the objection of the Commissioner. The Bench granted interim stay in the matter. The learned JDR today submits that the Commissioner has not sent his reply and objections in the stay application, therefore, he prays for extension of time be granted in the matter.
3. The learned Counsel submits that the issue is covered and there is a threat of recovery from the revenue and he also prays for order of stay for waiver pre-deposit of duty and penalty amounts. He also prays for listing the matter out of turn hearing, as the revenue involved is very high.
4. We have considered the submissions and perused the cited order and the copy of which has been placed before us. In terms of the said cited judgment rendered in the appellant’s own case, a similar issue was dealt with and the demands were set aside by following the ratio of the Tribunal ruling rendered in the case of CCE v. Larsen & Toubro Ltd. - (Tribunal) = 2006 (4) STT 12 (CESTAT -Mum.). There are other judgments also which has been followed as noted in the citation. In view of the appellant’s issue being covered in their favour, the stay application is allowed unconditionally granting full waiver of pre-deposit and staying its recovery. As the revenue involvement is high, matter to be heard out of turn on 9th July 2007. There shall be no recovery till the disposal of the appeal. The Commissioner to file his para-wise comments on the grounds of appeal.
(Pronounced and dictated in open Court)
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