2011 (9) TMI 833 - AT - Service Tax

Waiver of pre-deposit and stay for recovery - Appellants contended paying service tax under the head Works Contracts as per the agreement - Held that - Nothing contained in the said agreement or in the bill that the appellant was executing Works Contract as a composite contract - No amount of service tax mentioned in the records was paid by the appellant - Records indicates activity undertaken by appellant was Commercial and Industrial Construction - stay granted partly.

Summary

Issues:
1. Appellant seeks waiver of pre-deposit and stay of recovery for service tax, education cess, and penalty.
2. Classification of activity under 'Commercial and Industrial Construction Service' or 'Works Contract' for levy of service tax.
3. Benefit of abatement under Notification No.15/2004 ST.
4. Financial hardships claimed by the appellant for waiver of pre-deposit.

Analysis:
1. The appellant sought waiver of pre-deposit and stay of recovery for a sum of Rs.71,02,992, including service tax, education cess, and penalty demanded by the adjudicating authority. The demand was under 'Commercial and Industrial Construction Service' for the period from 10/9/2004 to 31/3/2009. The appellant argued that the activity should be classified as 'Works Contract' for service tax levy from 01/06/2007, and claimed the benefit of abatement under Notification No.15/2004 ST. The appellant also cited a stay order in a similar case to support their claim.

2. The Chartered Accountant for the appellant contended that the activity undertaken did not fall under 'Commercial & Industrial Construction Service' but should be classified as 'Works Contract' for service tax purposes from 01/06/2007. The Commissioner did not consider payments made under 'Works Contract' while quantifying the demand. The appellant argued for the benefit of abatement under Notification No.15/2004 ST. The Tribunal found that the appellant's activity aligned with the terms of 'Commercial and Industrial Construction Service' based on a specimen agreement and billing details provided, indicating sequential stages of construction activity.

3. The Joint Commissioner reiterated the findings in the impugned order and referred to a specimen agreement to support the classification of the appellant's activity as 'Commercial and Industrial Construction Services'. The appellant was directed to pre-deposit the adjudged amounts as there was no written contract for construction works executed for other clients.

4. The appellant pleaded financial hardships due to recession in the construction industry. The Tribunal observed the plea in the stay application but found no prima facie case for the appellant. The Tribunal noted the absence of evidence supporting the claimed financial hardships and directed the appellant to deposit Rs.25 lakhs within eight weeks for waiver of pre-deposit and stay of recovery for the remaining amount of service tax and penalties.

In conclusion, the Tribunal did not find merit in the appellant's arguments regarding the classification of the activity under 'Works Contract' or the benefit of abatement. The appellant was directed to deposit a specified amount within a timeframe for waiver of pre-deposit and stay of recovery for the balance amount of dues.