2013 (5) TMI 804 - AT - Service Tax

Waiver of pre deposit - Site Formation and Clearance, Excavation and Earthmoving and Demolition - Held that - assessee executed the work for SRFDCL works of construction of diaphragm wall; special fill for guide fund; concrete for anchor slab and RCC Hume Pipe and Box Culvert. Whether this activity falls within the taxable service defined under Section 65(97a) and 65(105)(zza) requires detailed examination at the time of final hearing of the appeal. While the main focus in the analysis in the adjudication order appears to reject the assessee s claim for availing benefit of the exclusionary clause in Section 65(97a) qua which it is claimed that services provided by the assessee to SRFDCL fall within the extended services provided in relation to restoration of water resources or water bodies. On prima facie analysis it does not appear that the services provided by the assessee are comprised within the definition of Site Formation and Clearance, Excavation and Earthmoving and Demolition services. - strong prima facie case in favour of the assessee entitling waiver of pre-deposit and stay of further proceedings which are accordingly ordered. There shall be no recovery initiated for the adjudicated amounts pending disposal of the appeal - Stay granted.

Summary

Issues:
- Waiver of pre-deposit and stay of further proceedings pursuant to the adjudication order.

Analysis:
The judgment deals with an application seeking waiver of pre-deposit and stay of further proceedings following an adjudication order assessing the petitioner/assessee to Service Tax for services rendered to a government entity. The services in question relate to construction works executed for the government entity, including diaphragm wall construction, special fill, concrete works, and culvert construction. The primary issue revolves around whether these services fall within the taxable service defined under relevant sections of the law. The adjudication order focused on rejecting the assessee's claim for exclusion under a specific clause, arguing that the services provided do not align with the definition of "Site Formation and Clearance, Excavation and Earthmoving and Demolition" services. However, the tribunal found a strong prima facie case in favor of the assessee, indicating that a detailed examination of the services' nature and applicability to the taxable service definition is necessary during the final hearing of the appeal.

The tribunal concluded that there is merit in the assessee's claim, leading to the decision to grant the waiver of pre-deposit and stay of further proceedings. As a result, no recovery action will be initiated for the adjudicated amounts while the appeal is pending disposal. The judgment emphasizes the importance of a detailed analysis during the final hearing to determine the exact nature of the services provided and their alignment with the taxable service definition. The decision to grant the relief sought by the assessee is based on the tribunal's assessment of a strong prima facie case in favor of the assessee, warranting the waiver and stay of proceedings until the appeal is resolved.