2012 (6) TMI 604 - AT - Service Tax

Waiver of pre-deposit - demand of Service Tax - Erection, Commissioning or Installation Service - earthwork and excavation for making civil foundation for windmill towers and did not install or erect such towers, which work was done by their clients Held that - works undertaken by the appellant were preparatory to erection, commissioning and installation of windmills Pre-deposit ordered.

Summary

Issues:
1. Whether the appellant's activities fall under "Erection, Commissioning or Installation Service" for the purpose of levy of Service Tax.
2. Whether the earthwork, excavation, road formation, and laying of civil foundation for erecting windmill towers constitute the definition of the aforementioned service.
3. Whether there was a sale of materials by the appellant to their clients.
4. Whether the appellant's financial hardships justify a waiver of pre-deposit.

Analysis:
1. The appellant sought waiver of pre-deposit and stay of recovery for a Service Tax demand exceeding Rs.1.87 crores. The dispute centered around whether the appellant's earthwork and excavation for civil foundation works at windmill sites constituted "Erection, Commissioning or Installation Service" under the Finance Act, 1994. The appellant argued they only supplied materials and did not physically handle equipment, thus not falling under the said service.

2. The department contended that the appellant's activities were preparatory to erecting windmills and hence fell under the definition of the service in question. The appellant's consultant provided a detailed breakdown of the work components, emphasizing that certain activities like road formation had no connection to windmill erection. The consultant also argued that if any Service Tax liability existed, it should be limited to specific works and values.

3. The appellant's consultant highlighted that materials sold to clients were subject to VAT, indicating a sale had occurred. The consultant further disputed the department's stance on capacity transfer and other specific work items, asserting they were not related to windmill installation. The consultant proposed that any Service Tax liability should be based on specific works with corresponding values.

4. The appellant's financial hardships were presented as a basis for requesting a waiver of pre-deposit. The consultant acknowledged the possibility of a further pre-deposit amount and committed to compliance within a specified timeline. The Tribunal accepted the consultant's offer for a pre-deposit amount and granted waiver and stay of recovery for the remaining balance upon compliance.

In conclusion, the Tribunal directed the appellant to pre-deposit a specified amount within a set timeframe, with the provision of waiver and stay of recovery for the outstanding amounts upon compliance.