2009 (8) TMI 746 - AT - Service Tax

Waiver of pre deposit Construction of Residential Complex - assessee is not required to include the cost of land in terms of the Board s clarification dated 27-7-2005 - the applicant has made out a prima facie case for waiver of pre-deposit - waiver of pre-deposit is allowed

Summary

Issues: Stay petition against waiver of pre-deposit of service tax amount, education cess, interest under Section 75, penalties under Sections 76, 77, and 78 of the Finance Act, 1994.

Analysis:
- The stay petition was filed against the waiver of pre-deposit of various amounts including service tax, education cess, interest, and penalties under different sections of the Finance Act, 1994.
- The appellant's counsel argued that in a previous case of the same appellant, the Tribunal had granted unconditional stay based on a specific Board's Circular.
- After reviewing the case records and the previous stay order, the Tribunal found that the issue in question was identical to the earlier case concerning the inclusion of the cost of land in the taxable value for service tax liability related to the construction of a residential complex.
- The Tribunal noted that as per the Board's clarification dated 27-7-2005, the assessee was not required to include the cost of land in the taxable value.
- Consequently, the Tribunal concluded that the appellant had established a prima facie case for the waiver of pre-deposit of the disputed amounts adjudged by the adjudicating authority.
- The Tribunal allowed the application for waiver of pre-deposit and stayed the recovery of the disputed amounts until the appeal was disposed of.
- Additionally, the Registry was instructed to link this appeal with the appellant's previous appeal for final disposal since both appeals involved the same issue.
- The decision was pronounced and dictated in court, granting the appellant relief in the form of a stay on the recovery of the disputed amounts until the appeal was resolved.