- (1.) WE have heard Shri Vinod Kant, learned counsel appearing for Central Excise department. An affidavit of service has been filed. This Central Excise Appeal under Section 35 -G of Central Excise Act, 1944 arises out of an order dated 5 -3 -2013 passed by Customs, Excise and Service Tax Appellate Tribunal, New Delhi (CESTAT) by which the CESTAT has allowed the application of the respondent -party for dispensing with the condition of pre -deposit of service tax, interest and penalty and stay of recovery during the pendency of the appeal.
(2.) THE Tribunal found that admittedly the appellant had availed the credit of service tax paid by M/s. Ghari Industries on the franchisee services provided by them. The said payment was made during the period when the application for amalgamation of the two units namely M/s. Ghari Industries Pvt. Ltd. and M/s. Rohit Surfactants Pvt. Ltd. was pending before the Allahabad High Court. The application for amalgamation was allowed on 1 -2 -2008 w.e.f. 1 -4 -2006. The CESTAT found that admittedly during the period the service receiver was entitled to the credit of service tax paid by M/s. Ghari Detergent (P) Ltd. The subsequent orders of the High Court allowing the amalgamation from the date of application will not affect the appellant's entitlement to the credit inasmuch as the service tax stands paid by M/s. Ghari Detergent (P) Ltd. during the same period. In the circumstances the demand from M/s. R.S.P.L. Ltd. was not justified. The Tribunal found that if the Revenue's contention is accepted, there was no requirement for payment of service tax by M/s. Ghari Industries. The Tribunal further found that the demand is also barred by limitation. We do not find that substantial questions of law raised by the Central Excise department, namely that the CESTAT had erred in granting stay to the respondent dispensing with the condition of pre -deposit of service tax, interest and penalty on the ground that there was no suppression or mis -statement on the part of respondent to irregularly avail the credit with any mala fide intention and the demand raised by invoking the extended period of limitation, arises from the facts of the case and requires consideration of the Court. The Central Excise Appeal is dismissed.;