2011 (10) TMI 113 - AT - Service Tax

Waiver of pre-deposit and stay of recovery in respect of various amounts of service tax and penalties - works contract service which is taxable w.e.f. 01/06/2007 - These works were taken over under agreements entered into between the appellants and the Government - contract awarded by the Government to each of the appellants was sub-contracted to one or the other constituents of the partnership of the same JV and the latter undertook the work. The JVs did not pay service tax. The Department issued show-cause notices for recovery of service tax - constituted works contract as defined under Section 65(105)(zzzza) of the Finance Act, 1994 and that they were liable to pay service tax on the gross amount collected from their client - keeping in view the case Ramky Infrastructure Ltd. Vs. CCE 2010 (5) TMI 337 - CESTAT, BANGALORE - Held that waiver of pre-deposit and stay of recovery are allowed in respect of the amounts adjudged against the appellants - similar cases which were heard by this Bench have been reopened for fresh hearing

Summary

Issues:
Waiver of pre-deposit and stay of recovery in service tax and penalties determined by the Commissioner for the period June 2007 to September 2008 under the head 'works contract service'.

Analysis:
The appellants filed applications seeking waiver of pre-deposit and stay of recovery for service tax and penalties determined by the Commissioner for the period June 2007 to September 2008. The demands were related to works awarded by the Government of Andhra Pradesh for irrigation projects and other related activities. Each appellant was a joint venture of two or three companies registered as a partnership firm. The Department issued show-cause notices for recovery of service tax from these joint ventures, alleging that the work undertaken through sub-contractors constituted 'works contract' and that service tax was payable on the amounts collected from the Government. The Commissioner confirmed the demands and imposed penalties on the joint ventures in separate orders.

The appellants contended that the work undertaken was a public welfare project and hence excluded from the levy of service tax under 'works contract service'. They argued that there was no transfer of property in the goods consumed in the execution of the work from the joint ventures to the Government of Andhra Pradesh. They relied on a Supreme Court judgment to support their position. Additionally, they referred to a Board's Circular clarifying the definition of 'works contract' to further strengthen their argument. The appellants also requested waiver of pre-deposit and stay of recovery based on previous Tribunal decisions in similar cases.

After considering the submissions, the Tribunal found the issues raised to be debatable. They noted that the precedent cited by the appellants could be followed and that the Board's clarification worked in favor of the appellants. The Tribunal observed that waiver and stay were granted in similar cases, and thus allowed the waiver of pre-deposit and stay of recovery in respect of the amounts adjudged against the appellants. The Tribunal also decided to list the present appeals with similar cases for a fresh hearing on a specified date.

In conclusion, the Tribunal granted the waiver of pre-deposit and stay of recovery to the appellants based on the debatable nature of the issues raised and the supporting precedents and clarifications cited during the proceedings. The case was scheduled for a fresh hearing along with other similar cases to be listed on a specific date.