2014 (1) TMI 766 - AT - Service Tax

Waiver of pre deposit - Commercial or Industrial Construction Services - Works contract - Held that - Waiver of pre-deposit and stay of recovery can be granted in this case, considering the plea of limitation raised by the appellant. The show-cause notice was issued on 21-4-2009 demanding service tax for the period from January 2005 to March 2008. The appellant seems to have brought on record sufficient materials in support of their plea that they did not have intention to evade payment of service tax during the said period. It is their case that they were executing works contract during the said period and hence not liable to pay service tax under the head Commercial or Industrial Construction Services . It has been contextually pointed out by the learned Counsel that the appellant has been paying tax under works contract service after this service became taxable - Prima facie case in favour of assessee - Stay granted.

Summary

Issues:
1. Waiver and stay of service tax demand and penalties.
2. Applicability of service tax under "Commercial or Industrial Construction Services."
3. Claim of limitation on demand period.
4. Financial hardships of the appellant.
5. Comparison with previous tribunal decisions on pre-deposit.

Analysis:
1. The appellant sought waiver and stay of service tax demand of Rs. 50,20,861/- for the period from January 2005 to March 2008, along with penalties. The demand pertained to "Commercial or Industrial Construction Services" related to construction of petrol/diesel bunks for oil companies. The appellant argued that they were only executing 'works contract' and not liable for service tax under any other head during the disputed period.

2. The learned Jt. CDR referenced a previous tribunal decision and argued for pre-deposit based on a similar case. The Tribunal had ordered pre-deposit in a case involving M/s. Lalitha Constructions. The Jt. CDR contended that the present appellant should also be directed to make a reasonable pre-deposit, citing the earlier decision.

3. After hearing the submissions, the Tribunal considered the appellant's plea of limitation. The show-cause notice was issued in 2009 for the period from 2005 to 2008. The appellant provided materials supporting their claim that they were not evading service tax during that period as they were engaged in 'works contract' activities. The Tribunal noted that the appellant had been paying tax under 'works contract service' post its taxable status. In a similar case involving Lalitha Constructions, the Tribunal had taken a prima facie view on limitation, leading to a partial pre-deposit. Considering these factors, the Tribunal granted waiver of pre-deposit and stay of recovery for the amounts adjudged against the appellant.

4. The appellant's financial hardships were evidenced by bank statements and related documents submitted in support of the stay application. The Tribunal acknowledged these hardships while making its decision on the waiver and stay of recovery.

5. The Tribunal's decision was based on the appellant's plea of limitation, the nature of the services provided, and the comparison with previous tribunal decisions on pre-deposit requirements. The waiver and stay were granted in light of these considerations, allowing relief to the appellant in the disputed service tax matter.