2010 (9) TMI 458 - AT - Service Tax

Waive pre-deposit - The benefits of notification were denied to the applicant on the ground that the applicant is providing completion and finishing services which is not covered under the Notifications No. 15/04, dated 10-9-2004 and No. 1/06, dated 1-3-2006 - as per the scope of the completion and finishing services which includes glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, swimming pools, acoustic applications or fittings etc. in relation to building of civil construction - goods which are sold to their customers on payment of VAT and the value of such material is not be taken into consideration while calculating the amount of service tax in respect of completion and finishing services provided by the applicant. Held that the amount already deposited is sufficient for purpose of hearing the appeal - Therefore waive pre-deposit of the balance of service tax, penalties and interest and stay recovery of the dues pending disposal of the appeal.

Summary

Issues:
Waiver of pre-deposit of service tax and penalties imposed, interpretation of completion and finishing services under Service Tax, consideration of material purchased and sold to customers in calculating service tax liability.

Waiver of Pre-deposit:
The applicant sought waiver of pre-deposit of service tax and penalties amounting to Rs. 4,25,12,716. The applicant had already paid a significant portion of the dues, totaling Rs. 2,29,99,130, and Rs. 61,46,751 towards interest and penalty. The demand arose from the provision of completion and finishing services, which were initially considered as commercial, industrial construction services. The applicant contended that the services provided fell under the purview of Service Tax post-1-3-2006, and the tax liability should be recalculated to exclude the value of material sold to customers. The Tribunal found the deposited amount sufficient for the appeal and waived the pre-deposit of the remaining balance.

Interpretation of Completion and Finishing Services:
The dispute centered around the interpretation of completion and finishing services provided by the applicant, including activities like glazing, plastering, painting, tiling, joinery, carpentry, etc., in relation to civil construction. The Revenue argued that as per Section 65 of the Finance Act, service tax is levied on the gross amount received without any abatement for material purchased and sold. However, the Tribunal acknowledged that the material sold to customers, subject to VAT payment, should not be included in the calculation of service tax liability for such services. Consequently, the Tribunal found that the denial of notification benefits to the applicant was unjustified, and the deposited amount adequately covered the liabilities, warranting a waiver of pre-deposit for the remaining balance.

Consideration of Material in Service Tax Liability:
The Revenue contended that the applicant, providing completion and finishing services, was liable to pay service tax on the gross amount received, without any deduction for material costs. However, the Tribunal observed that the value of material sold to customers, on which VAT was paid, should not be factored into the service tax calculation for such services. This distinction led to a reassessment of the tax liability, with the Tribunal ultimately deciding in favor of the applicant and waiving the pre-deposit requirement for the outstanding service tax, penalties, and interest until the appeal's disposal.

This judgment by the Appellate Tribunal CESTAT, Mumbai addressed the complexities of service tax liability concerning completion and finishing services, emphasizing the exclusion of material sold to customers from the tax calculation. The decision to waive the pre-deposit requirement highlighted the Tribunal's consideration of the applicant's contentions and the legal provisions governing service tax assessments.