2013 (12) TMI 488 - AT - Service Tax

Waiver of pre deposit - Service Tax demand - Development of telecom infrastructure - Held that - Prima facie, RCIL is involved in rendering services by developing the infrastructure for the applicant and ultimately when the infrastructure is ready, the applicant is required to pay charges depending upon the extent of use. The payments received by the applicant is only in the nature of reimbursement of expenses which are required to be made by the later for the purpose of creating the infrastructure facility as per the MOU. Therefore, prima facie, these payments cannot be treated as payment towards support services rendered by the applicant to RCIL and therefore, we hold that the applicant has made out a prima facie case for full waiver of the dues as per the impugned order - Stay granted.

Summary

Issues:
Service tax demand on the applicant for infrastructure development services.

Analysis:
The case involved a dispute regarding a service tax demand of Rs. 86,27,421/- along with interest imposed on the applicant for developing telecom infrastructure. The applicant had entered into an MOU with a company which was later taken over by another company responsible for developing the infrastructure on build, own, and operate basis. The applicant obtained necessary permissions and clearances from local authorities, and the expenses were reimbursed by the company. The main contention was whether the payments received by the applicant should be treated as payment towards support services or as reimbursement of expenses incurred in creating the infrastructure.

The advocate for the applicant argued that the infrastructure development was the responsibility of the company, and any clearances should have been obtained by them. The payments received were reimbursement of expenses and not for services rendered. On the other hand, the SDR representing the respondent contended that the payments should be considered as part of support services. The Tribunal carefully considered the submissions and records. It was observed that the company was involved in developing the infrastructure for the applicant, and the payments received were reimbursement of expenses required for creating the infrastructure as per the MOU. Therefore, the Tribunal held that the payments could not be treated as payment towards support services. Consequently, the Tribunal found that the applicant had made out a prima facie case for full waiver of the dues as per the impugned order.

In the final decision, the Tribunal waived the pre-deposit of dues as per the impugned order and stayed the recovery thereof until the disposal of the appeal. This judgment clarified the nature of the payments received by the applicant for infrastructure development and established that they were not to be considered as payment towards support services.