2011 (2) TMI 810 - AT - Service Tax

waiver of pre-deposit - Application of stay - The appellants were engaged in construction of National Highway during the material period under build operate and transfer basis - Registry is directed to link this appeal with the appeals No. ST/33/09 & ST/938/09 filed by the assessee and the appeal No. ST/63/09 filed by the Revenue and list all the appeals together for final hearing on 24/3/2011

Summary

Issues:
1. Waiver of pre-deposit of confirmed dues.
2. Construction of National Highway under 'build, operate and transfer' basis.
3. Similar demands raised for earlier periods.
4. Observations made in Stay Order No. 1446/2009.

Analysis:
1. The judgment involves the application for waiver of pre-deposit of confirmed dues, including Service Tax, interest, and penalties under various sections of the Finance Act, 1994. The appellant, engaged in the construction of National Highway under 'build, operate and transfer' basis, sought waiver citing similar demands waived for earlier periods by the Tribunal in Stay Orders No. 1446/2009 and No. 222/2010. The Tribunal considered the appellant's case and observations made in the earlier Stay Order.

2. The appellant's construction of the National Highway under the 'build, operate and transfer' basis was a crucial aspect of the case. The Tribunal noted the tripartite assignment agreement between the National Highways Authority, CIDBI, and the appellant, authorizing the collection of toll tax. The Ministry's amendment notification exempted toll tax collected by the appellant from Service Tax. This exemption formed the basis for the Tribunal's decision to waive pre-deposit of the amounts confirmed by the adjudicating authority.

3. The Tribunal, in Stay Order No. 1446/2009, acknowledged the appellant's prima facie case for waiver of pre-deposit based on the exemption of toll tax from Service Tax. The consistent view taken by the Bench in earlier Stay orders supported the decision to waive the condition of pre-deposit for hearing the appeal. The Tribunal allowed the stay application, directing the registry to link the current appeal with related appeals for final hearing.

4. The observations made in Stay Order No. 1446/2009 highlighted the legal basis for waiving pre-deposit, emphasizing the exemption of toll tax collected by the appellant from Service Tax. The Tribunal's decision was in line with the earlier view taken by the Bench, ensuring fairness and consistency in addressing similar demands raised against the appellant. The judgment provided a detailed analysis of the legal and factual aspects supporting the waiver of pre-deposit in the case.