2009 (12) TMI 545 - AT - Service Tax

Demand of service tax - Residential Complex service water tank construction demand of service tax assailed on the ground that overhead water tank construct as per work order of housing board Revenue contended that appeal not maintainable as appeal dismissed by Commissioner (Appeals) for default in pre-deposit and absence of request for waiver of pre-deposit - no Appellant shall prefer to cause prejudice to himself. But for ignorance of law matter remanded back to Commissioner (Appeals) to decide the appeal on merits disposal of appeal accordingly

Summary

Issues:
1. Interpretation of the term "Residential Complex" under Section 65(30a) of the Finance Act, 1994 for imposing service tax.
2. Maintainability of the appeal due to lack of pre-deposit made by the Appellant.

Interpretation of "Residential Complex":
The Appellant argued that the definition of "Residential Complex" under Section 65(30a) of the Finance Act, 1994, along with supporting documents, does not establish the construction of any residential complex by them. They contended that the construction of an overhead water tank, as per a work order from the Rajasthan Housing Board, should not categorize them as a service provider for the construction of a residential complex. The Appellant sought to proceed with the appeal without the need for pre-deposit.

Maintainability of the Appeal:
The Respondent, represented by the learned DR, opposed the Appellant's submission, highlighting that the appeal had been dismissed by the first Appellate authority due to the absence of any pre-deposit made by the Appellant or an application for waiver of the pre-deposit. The Respondent argued that this lack of compliance rendered the appeal non-maintainable before the current forum.

Upon hearing both parties and examining the records, the Tribunal acknowledged that the appeal was rejected by the first Appellate authority for the specified reasons. The Tribunal recognized that the Appellant did not intend to prejudice their case, attributing the failure to file a stay application to a potential lack of legal awareness. The Tribunal noted that the appeal was not decided on its merits, and after assessing the substance of the case, the Tribunal found that the Appellant had a prima facie case deserving a hearing without the insistence on a pre-deposit. Consequently, the Tribunal decided to remand the matter back to the Commissioner (Appeals) to hear the appeal on its merits without requiring any pre-deposit. The Tribunal disposed of both the stay petition and the appeal accordingly, directing the Commissioner (Appeals) to proceed with the appeal without emphasizing any pre-deposit requirement.