2013 (12) TMI 381 - AT - Service Tax

Waiver of pre-deposit of Service Tax - Penalty u/s 78 - Commercial construction services - Held that - services have been rendered under the category of commercial construction services by the appellant to various agencies as mentioned above. It is the claim of the appellant that they have rendered the services to Government authorities viz. Eastern Railways and others wherein the service tax liability would not arise - However, since there has been a mismatch between the figures of demand raised in the show cause notice and the reply submitted alongwith documentary evidences by the appellant, the Ld. Commissioner has confirmed the demand. In these circumstances, in the interest of justice, we are of the view that the case deserves to be remitted back to the original authority to examine the evidences now produced by them to ascertain their claim whether the services rendered by them and claimed to fall under the exempted category is correct or otherwise - Decided in favour of assessee by way of remand.

Summary

Issues:
Application for waiver of pre-deposit of Service Tax and penalties under various provisions of Finance Act, 1994.

Analysis:
The appellant sought waiver of pre-deposit of Service Tax amounting to Rs.75.97 Lakhs and penalties under Section 78 and other provisions. The appellant contended that they provided construction services for commercial or industrial buildings, civil structures, roads, bridges, railways, airports, and pipelines to various entities. The appellant claimed that services to government authorities like Railways were not taxable. The appellant submitted a chart showing services rendered to different entities. The Commissioner accepted in principle that services to Railways were not taxable but demanded evidence, which the appellant could not provide during adjudication. The appellant now presented all relevant documents, reconciling discrepancies. The appellant admitted liability for services to other entities and paid around Rs.6.00 Lakhs as service tax.

The Revenue reiterated the Commissioner's findings, stating that the demand was confirmed due to lack of evidence to support the appellant's claims. The Revenue expressed willingness to remand the case for further examination.

Upon hearing both parties, the Tribunal decided to dispose of the appeal without further pre-deposit, considering the amount already paid. The Tribunal noted that the appellant provided commercial construction services to various agencies, including government authorities like Eastern Railways. While the Commissioner accepted the appellant's submissions in principle, discrepancies in figures led to the demand confirmation. The Tribunal acknowledged the appellant's new compilation of documentary evidence, not previously available during adjudication. In the interest of justice, the Tribunal remanded the case to the original authority to review the new evidence and determine the correctness of the appellant's claim for exempted services. The Tribunal emphasized granting a reasonable opportunity for the appellant's hearing, keeping all issues open. The impugned order was set aside, and the appeal was allowed by way of remand.