2011 (4) TMI 845 - AT - Service Tax

Waiver of pre-deposit - exemption under notification 12/2003-ST - whether the value of materials supplied by service receiver can be brought within the meanings of gross amount charged or consideration used in section 67 of the Finance Act 1994 - Held that - The type of contract undertaken by assessee would be covered under Works Contract Service from 01-06-2007 - In the notification it is specified that an assessee should indicate the value of materials sold in each invoice. All what is required is that they should have documentary proof specifically indicating the value of the said goods and materials sold. When the applicants are making a claim that they have paid VAT on more than 67% of the gross receipts received by them and they have documentary proof by way of VAT returns, this claim cannot be brushed aside - Hence, the Applicants have made out a strong prima facie case in their favor for complete waiver of the demands before admission of the Appeal.

Issues:
1. Whether the service provided can be classified as "construction service" or "Commercial or Industrial Construction service."
2. Whether the Applicants were eligible for the benefit of specific notifications providing exemptions.
3. Whether the value of free of cost (FOC) materials received should be included in the gross amount charged before availing the rebate.
4. Whether the contracts undertaken were in the nature of composite works contract chargeable to service tax.
5. Whether the Applicants were entitled to exemption under notification 12/2003-ST for the value of goods and materials sold.
6. Interpretation of Notification 01/2006-ST and its conditions regarding completion and finishing services.
7. Interpretation of Notification 12/2003-ST and the requirement of indicating the value of materials sold in invoices.

Analysis:
1. The Revenue argued that the service provided by the Applicant was classified as "construction service" and later as "Commercial or Industrial Construction service." The Applicant availed exemptions under specific notifications but discharged service tax liability on only 33% of the contract value after abatement of 67%. The Revenue contested that the Applicants were engaged in providing only finishing services and received FOC materials, which were not included in the gross amount charged before availing the rebate.

2. The Applicants claimed that the contracts undertaken were composite works contracts not chargeable to service tax during the impugned period. They also argued for exemption under notification 12/2003-ST for the value of goods and materials sold, claiming it was higher than the abatement they availed under the notifications.

3. The interpretation of Notification 01/2006-ST was crucial, as it specified conditions against providing only completion and finishing services. The Revenue argued that the exemption was not applicable to completion and finishing services, and the value of FOC materials should have been included in the gross receipts before applying the abatement.

4. Regarding Notification 12/2003-ST, the Applicants contended that they had documentary proof of paying VAT on more than 67% of the gross receipts, indicating the value of goods and materials sold. The dispute centered on whether the value of materials supplied by the service receiver should be included in the "gross amount charged" or "consideration."

5. The Tribunal noted the definitions of "completion and finishing services" and "commercial or industrial construction service" to analyze the nature of services provided. The interpretation of the notifications and their conditions played a significant role in determining the eligibility of the Applicants for exemptions and abatements.

6. Ultimately, the Tribunal found that the Applicants had made a strong prima facie case in their favor for a complete waiver of the demands before admission of the Appeal. They granted the waiver and stayed the collection of all demands arising from the impugned order during the pendency of the Appeal.

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