2010 (5) TMI 471 - AT - Service Tax

Works contract stay order - appellant, a turnkey contractors, having executed a contract with state Government for the construction of a reservoir and canal meant for irrigation of agricultural land - activity treated as taxable under the category of works contract services - CESTAT granted unconditional waiver to Lanco Infratech Ltd. s case (2009 -TMI - 77813 - CESTAT, BANGALORE) - appellant has made out a prima facie case for waiver of pre-deposit Waiver allowed

Summary

Issues: Whether the activity of a turnkey contractor executing a contract with the government for construction can be treated as taxable under "works contract services."

Analysis:
The stay petition was filed for waiver of pre-deposit of Service Tax and penalties. The applicant, a turnkey contractor, executed a contract with the Andhra Pradesh Government for constructing a reservoir and canal for agricultural land irrigation. The issue was whether this activity falls under taxable "works contract services." The counsel argued that the projects were non-commercial in nature, similar to a previous case involving Lanco Infratech Ltd. where unconditional waiver was granted. The Departmental Representative contended that the projects fell under EPC contracts, thus liable for service tax under works contract services.

Upon reviewing submissions and records, it was noted that the projects executed were related to an irrigation system. The works contract was for construction activities that should have been undertaken by the Government but were outsourced on an EPC contract basis. The EPC contract excluded canals and dams from the service tax net in the definition of works contract. The case was compared to Lanco Infratech Ltd., where a similar issue was raised regarding service tax liability for turnkey projects for the Government of Andhra Pradesh. The Board Circular clarified that only works intended for commerce or industry are taxable, excluding non-commercial projects like roads, airports, and dams.

Considering the identical issues in both cases, the Tribunal found that the appellant established a prima facie case for waiver of pre-deposit. Thus, the application for waiver was allowed, and recovery of the amount stayed pending appeal disposal.