2012 (6) TMI 491 - AT - Service Tax

Erection and commercial and industrial construction service as also work contract - the appellant has two units - demand raised as absence of option exercised by the appellant before they started paying duty under the works contract - Held that - consideration clarification issued by the CBEC vide their D.O.F.NO.334/12/09-TRU dt.6.7.09. It stands clarified that the service provider who paid service tax prior to 1.6.07 for taxable service such as erection, commissioning or installation service, commercial or industrial construction services or construction of complexes services, as the case may be, is not entitled to change classification to single composite service for the purpose of payment of service tax prior to 1.6.07 and hence is not entitled to the benefit of composite scheme - the appellant has not been able to make out prima a case in its favour so as to allow stay petition - direct the appellant to deposit an amount of Rs.15 lakh as pre-deposit.

Summary

Issues:
1. Dispensing with the condition of pre-deposit of service tax.
2. Classification of services under works contract and payment of service tax.
3. Exercise of option under Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007.
4. Eligibility for the benefit of the composite scheme.
5. Applicability of rules to works contracts executed before the rule's existence.

Analysis:
1. The appellant sought to dispense with the pre-deposit condition of service tax. The appellant was engaged in providing erection, installation services, and GTA services. They applied for a change in registration to the works contract category, which was granted. The dispute arose from the classification of services and payment of service tax. The appellant argued that they paid the correct rate of duty and the description of services in the returns was a mistake. The Revenue raised a demand based on the classification as commercial and industrial construction services.

2. The Commissioner confirmed the demand citing non-exercise of the option under Rule 3(3) of the Works Contract Rules and the appellant's claim of input service credit. The Tribunal noted that the appellant's application for registration under works contract implied the exercise of the option. It was also held that the restriction under Rule 3(3) pertained to input credit, not input services. The issue of classification and payment under the composite scheme was crucial in determining the appellant's eligibility.

3. The Tribunal considered the applicability of the rules to works contracts executed before the rule's existence. A clarification from the CBEC and a decision of the Andhra Pradesh High Court were cited. The High Court's decision emphasized that where service tax had been paid for a works contract, the option to avail the composition scheme was excluded. The Tribunal found that the appellant failed to establish a prima facie case in their favor to allow the stay petition.

4. Consequently, the Tribunal directed the appellant to deposit a specified amount as a condition for hearing their appeal. The deposit was required within a set timeframe. The Tribunal waived the balance amount of tax subject to the initial deposit. The recovery of the tax amount was stayed during the appeal's pendency. Compliance was to be ascertained on a specified date.

This detailed analysis of the judgment covers the issues involved comprehensively, addressing the legal aspects and arguments presented by the parties involved in the case.