2009 (2) TMI 700 - AT - Service Tax

Recovery of the demand during pendency of the appeal - gross value of contract received towards site formation service - cost of fuel supplied free of cost - includibility

Summary

Issues:
1. Whether the gross value of a contract for site formation service should include the cost of fuel supplied free of cost.
2. Whether the elements of cost should play a role in determining service tax.
3. Whether pre-deposit may be dispensed based on precedent judgments and interim relief granted in the past.
4. Whether the notification of abatement bringing the value of the service to the assessable value justifies insisting on pre-deposit.
5. Whether recovery of demand should be stayed during the pendency of the appeal.
6. Whether similar appeals pending on the same issue should be heard together for analogous hearing and disposal.

Analysis:
1. The appellant argued that the gross value of the contract for site formation service should not include the cost of fuel supplied free of cost. Citing the judgment of the Hon'ble Madras High Court and a decision of the Tribunal, the appellant contended that the cost elements should not influence service tax determination. The appellant sought dispensation of pre-deposit based on interim relief granted in the past.

2. The Departmental Representative supported the authorities' order, emphasizing that the notification of abatement brings the service value within the assessable ambit, justifying the insistence on pre-deposit. During the hearing, both sides presented their arguments, and the Tribunal examined the records without expressing an opinion on the assessable value of the service provided.

3. The Tribunal, prima facie, considered that the precedent decisions warranted no recovery of the demand while the appeal was pending. Given the significant amount involved, the Tribunal directed the matter to be listed for a hearing and noted the existence of a similar appeal where stay had been granted. Consequently, the Tribunal ordered the listing of related matters for analogous hearing and disposal.

4. The Tribunal's decision to stay the recovery of the demand during the appeal process indicates a cautious approach to prevent undue financial burden on the appellant. By considering precedent judgments and the interim relief granted in the past, the Tribunal aims to ensure fair treatment and procedural justice in handling the appeal.

5. The Tribunal's directive to list similar appeals together for hearing and disposal reflects an efficient approach to address common issues and ensure consistency in decision-making. By consolidating related matters, the Tribunal streamlines the adjudication process and facilitates a comprehensive review of the legal issues involved.

6. Overall, the judgment demonstrates a balanced consideration of the legal arguments presented by the parties and a procedural approach focused on fairness, precedent, and efficiency in the adjudication of the appeal related to the determination of service tax on site formation services.