2014 (1) TMI 1553 - AT - Service Tax

Demand of service tax - Commercial or industrial construction services - Whether construction of hospital is a commercial or industrial construction - Held that - In view of the clarification issued by the Board at the time of introducing levy on the impugned service and also different classifications being adopted by the State Governments for approvals, the appellant cannot be prima facie faulted for having entertained a bonafide belief that their activity was not taxable. Therefore, we consider it proper to waive the requirement of pre-deposit for hearing the appeal - Stay granted.

Issues:
1. Whether construction of hospitals falls under the definition of 'commercial or industrial construction services' for the purpose of service tax liability.
2. Whether the appellant's belief that constructing hospitals did not attract service tax was bonafide.
3. Whether the plea of limitation based on bonafide belief is valid.
4. Whether the extended period of limitation is correctly invoked in this case.
5. Whether the appellant is liable to pay the impugned demand along with interest and penalty.

Analysis:

Issue 1:
The main issue in this case is whether the construction of hospitals falls within the ambit of 'commercial or industrial construction services' as defined under Section 65 (105) (zzq) of the Finance Act, 1994. The department contended that constructing hospitals also falls under this definition, leading to a show-cause notice and subsequent demand of service tax, interest, and penalty.

Issue 2:
The appellant argued that their belief that constructing hospitals did not attract service tax was bonafide. They highlighted a clarification by the CBEC regarding the approval for construction given by local authorities to determine if a construction is commercial or industrial. The appellant maintained that since hospitals have separate classifications from industrial and commercial constructions by local authorities, they believed their activity was not taxable.

Issue 3:
The Revenue representative opposed the appellant's plea of limitation based on bonafide belief, arguing that the activity of constructing hospitals for commercial purposes should be considered a commercial activity subject to service tax. The representative contended that non-disclosure of constructing hospitals and not paying tax on consideration received invalidated the plea of limitation.

Issue 4:
The Tribunal considered the arguments from both sides and found the question of whether constructing hospitals constitutes commercial or industrial construction to be debatable. Given the clarification by the Board and the varying classifications by State Governments for approvals, the Tribunal ruled in favor of the appellant's bonafide belief, waiving the requirement of pre-deposit for the appeal and ordering a stay on the collection of dues during the appeal's pendency.

Issue 5:
The Tribunal's decision to waive the pre-deposit requirement and stay the collection of dues during the appeal implies that the appellant is not immediately liable to pay the impugned demand of Rs.19,96,877/- along with interest and penalty. This decision is based on the Tribunal's assessment of the bonafide belief held by the appellant regarding the taxability of constructing hospitals under the relevant provisions.

The judgment by the Appellate Tribunal CESTAT Chennai in this case primarily revolves around the interpretation of whether constructing hospitals constitutes 'commercial or industrial construction services' for service tax liability. The Tribunal considered the arguments put forth by both parties, ultimately ruling in favor of the appellant's bonafide belief due to the ambiguity surrounding the classification of hospital constructions and the guidance provided by the CBEC. This decision led to the waiver of pre-deposit requirements and a stay on the collection of dues during the appeal process.

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