2013 (3) TMI 523 - AT - Service Tax

Renting of Immovable Property - valuation - inclusion of electricity charges from the tenant in the gross value of taxable service - that - electricity is goods and the same shall not form part of taxable service is clarified by the Notification No.12/2003. - the applicant has made out a prima facie case for 100% waiver of the service tax confirmed and penalty imposed - stay granted.

Summary

Issues:
Waiver of pre-deposit of service tax, interest, and penalty under Section 78 of the Finance Act, 1994 for 'Renting of Immovable Property Service' related to electricity charges recovered from tenants.

Analysis:

The appellants sought waiver of pre-deposit of service tax amounting to Rs.30,35,342/- along with interest and penalty under Section 78 of the Finance Act, 1994, concerning the activity of 'Renting of Immovable Property Service' which included recovery of electricity charges from tenants. The Revenue contended that the electricity charges formed part of the taxable service. The appellants argued that electricity supply constituted 'goods' and was exempted under Notification No.12/2003. The adjudicating authority did not provide a clear finding on this issue, leading the appellants to request a stay on the proceedings.

Upon reviewing the case and referring to a similar precedent involving Panchsheel Tech Park Pvt. Ltd., where the proceedings were dropped against the assessee, the Tribunal examined the contention that electricity should be considered as 'goods' and hence exempt from taxable services as per Notification No.12/2003. Finding merit in the appellant's argument, the Tribunal held that a prima facie case for 100% waiver of the service tax confirmed and penalty imposed was established. Consequently, the Tribunal granted a waiver of the pre-deposit requirement for the service tax, interest, and penalty, staying the recovery during the appeal's pendency.

Considering the similarity of issues in another appeal (No. ST/469/2012), the Tribunal directed the Registry to consolidate the present appeal with the mentioned appeal for final disposal on a specified date. The decision was dictated and pronounced in court, ensuring the appellant's relief from the pre-deposit requirement and staying the recovery process during the appeal proceedings.