- (1.) This appeal has been preferred by the revenue under Section 35G of the Central Excise Act, 1944 (in short, "the 1944 Act") read with Section 83 of the Finance Act, 1994 (for brevity, "the Act") against the order dated 15.10.2013, Annexure A. 4 passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi, (in short, "the Tribunal") in ST/STAY/58665/2013, claiming following substantial questions of law:-- (i) Whether the Tribunal is correct in holding that no prima facie case is made out to safeguard the interest of the revenue under the provisions of section 35F of Central Excise Act, 1944? (ii) Whether the discretion exercised by the Tribunal for complete waiver of pre-deposit is judicious and in accordance with the judicial precedent and law evolved by the Hon'ble Supreme Court of India? (iii) Whether the impugned order passed by the learned Tribunal is a justified and well reasoned order in accordance with law? A few facts relevant for the decision of the controversy involved as narrated in the appeal may be noticed. The respondent-assessee is engaged in providing telecommunication (IUC) services as defined under Section 65(109a) of the Finance Act, 1994 as amended and is liable to pay service tax in terms of Section 65(105)(zzzx) of the Act. It is registered with the department for providing services under the category of 'Business Auxiliary services' vide registration number AABCB5576GST289. It is availing the facility of CENVAT credit under Cenvat Credit Rules, 2004 (in short, "the CENVAT Rules"). During audit, it was noticed that the assessee was wrongly availing the Cenvat Credit of Inter Usage connection (IUC) charges. The case was referred by the Commissioner, Central Excise Commissionerate, Panchkula to the team comprising of jurisdictional range and preventive wing of the Central Excise Division Ambala for further investigation. The assessee was summoned to appear before the Superintendent (Prev.) Central Excise Ambala to submit certain documents, which were examined in detail. The assessee is raising bills and collecting payments regarding IUC charges. It has availed the Cenvat credit of the service tax paid against the bills raised by the other telecom operators considering them as the input services and has utilised the same on the services provided by them. The assessee was summoned to appear on 25.9.2012 and submit the details of payments made and received by them to other telecom operators. The assessee submitted the details of Cenvat credit availed by it during the period 2007-08 to 2011-12. According to the revenue, the input service credit of Rs. 25,82,82,437/- availed by it was inadmissible and recoverable from it under Rule 14 of the CENVAT Rules read with section 73 of the Finance Act, 1994. Accordingly, the assessee was issued a show cause notice dated 10.10.2012, Annexure A. 2 for recovery of inadmissible cenvat credit of Rs. 25,82,82,437/- under Section 73 of the Finance Act by invoking the extended period of limitation along with interest under Section 75 of the Act and proposing penal action under Sections 76, 77, 78 of the Act. The availment of cenvat credit of the said amount was disallowed by the adjudicating authority vide order dated 7.3.2013, Annexure A. 3. Penalties under Sections 76, 77 and 78 of the Act were also imposed. Aggrieved by the order, the assessee filed appeal alongwith stay application before the Tribunal. Vide order dated 15.10.21013, Annexure A. 4, the Tribunal allowed the stay application without any pre-deposit by the assessee. The Tribunal granted full waiver of pre deposit and stayed all further proceedings till disposal of the appeal relying upon earlier judgments of the Chennai and Bangalore Tribunals in the cases of BSNL v. CCE,2011 02 LCX 0123and Manipal Advertising Services (P.) Ltd. v. CCE,2010 25 STT 30(Bang.-CESTAT). Hence the present appeal by the revenue.
(2.) Learned counsel for the revenue submitted that reliance by the Tribunal on the judgments of Chennai and Bangalore Tribunals in BSNL and Manipal Advertising Services (P.) Ltd. cases was misplaced as the same were distinguishable. Moreover, nothing has been provided to safeguard the interest of the revenue. No hardship had been shown by the assessee. He placed reliance on judgment of this Court in Krishan Kumar v. Commissioner of Customs [CWP No. 2667 of 2009, decided on 19.2.2009].
(3.) After hearing learned counsel for the appellant, we do no find any merit in the appeal;