2014 (2) TMI 143 - AT - Service Tax

Waiver of pre-deposit of Service Tax - Penalty under Section 78 - construction services - Held that - Applicant was allowed sufficient time to place the proof of payment of Service Tax by the principal contractor M/s.Larsen & Toubro Ltd. which they failed to do. Prima facie, we also find that the Applicant was registered with the Service Tax department for the disputed period and discharged Service Tax when services were rendered by them as a contractor, but failed to pay Service Tax when they rendered service as a sub-contractor without disclosing these facts to the department. Hence, prima facie it cannot be said that the entire demand is barred by limitation. In these; circumstances, we are of the view that the Applicant could not able to make out a prima facie case for total waiver of pre-deposit of dues adjudged. No financial hardship has been pleaded - Conditional stay granted.

Issues Involved:
1. Waiver of pre-deposit of Service Tax and penalty under Section 78 of the Finance Act, 1994.
2. Liability of Service Tax on the sub-contractor for services rendered.
3. Proof of payment of Service Tax by the principal contractor.
4. Barred by limitation.
5. Financial hardship not pleaded.

Analysis:

1. Waiver of Pre-deposit:
The judgment pertains to an application for the waiver of pre-deposit of Service Tax and penalty amounting to Rs.1,23,71,352. The demand was confirmed against the Applicant for rendering taxable services as a subcontractor for a main contractor. The Applicant argued that since the principal contractor had already paid the Service Tax for the services rendered, they should not be liable for the same tax again. The Tribunal found that the Applicant failed to provide proof of payment by the principal contractor and did not disclose relevant information to the department. As a result, the Tribunal directed the Applicant to deposit Rs.50.00 Lakhs within eight weeks to stay the recovery of the balance dues during the appeal process.

2. Liability of Service Tax on Sub-contractor:
The argument put forth by the Applicant's Chartered Accountant was that the Service Tax liability should not be imposed on the sub-contractor if the principal contractor has already paid the tax for the same services. However, the Tribunal relied on previous judgments and held that the Service Tax liability could indeed be imposed on the sub-contractor for the services rendered. The failure of the Applicant to provide evidence of payment by the principal contractor led to the conclusion that the Service Tax was payable by the sub-contractor.

3. Proof of Payment by Principal Contractor:
The Applicant's Chartered Accountant attempted to obtain proof of payment of Service Tax from the principal contractor but was unsuccessful as the contractor refused to provide the information. Despite this, the Tribunal emphasized the importance of providing such evidence to support the claim of not being liable for the tax. The failure to produce these documents worked against the Applicant in establishing their case for waiver of pre-deposit.

4. Barred by Limitation:
The Applicant contended that the demand was issued invoking an extended period of limitation without any suppression of facts or misstatement on their part, thus arguing that the demand was barred by limitation. However, the Tribunal found that the Applicant had not disclosed all relevant information to the department, indicating that the demand was not entirely barred by limitation.

5. Financial Hardship:
The judgment highlighted that no plea of financial hardship was made by the Applicant. The absence of such a plea, coupled with the failure to establish a prima facie case for total waiver of pre-deposit, influenced the Tribunal's decision to direct the deposit of a specified amount to stay the recovery of the balance dues during the appeal process.

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