2014 (2) TMI 384 - AT - Service Tax

Waiver of pre-deposit - Demand of service tax - Construction of residential complex service - Held that - Factual submissions made by the assessee before the Commissioner were not supported by any documentary evidence though references were made to joint venture agreements, sale deeds and power of attorney. None of these documents was produced before the adjudicating authority and therefore that authority held against the assessee, rightly so, prima facie. We also wanted to see the relevant documents but none is forthcoming. It is in this scenario that we have stated at the outset that we have found no prima facie case for the appellant against the impugned demand - Conditional stay granted.

Summary

Issues Involved:
1. Waiver of pre-deposit and stay of recovery sought by the appellant in relation to the adjudged dues for service tax and education cesses.
2. Whether the appellant's construction activities qualify as taxable services under the head 'construction of residential complex service' for the period from April 2007 to March 2008.
3. Lack of evidence supporting the appellant's claim of self-service and non-liability to pay service tax.
4. Admissibility of the plea of self-service in the absence of documentary evidence.
5. Compliance requirement for pre-deposit and stay of penalties and interest on service tax and education cesses.

Analysis:

1. The appellant sought waiver of pre-deposit and stay of recovery for the adjudged dues, including a significant amount demanded for service tax and education cesses related to the construction of residential complexes. The Tribunal, after reviewing the records and hearing both sides, did not find a prima facie case against the demand. The appellant's construction activities were categorized into two types: construction on their own land before 1.6.2007 and joint ventures on others' land after that date. The appellant argued that they were providing self-service in both scenarios, hence not liable to pay service tax.

2. The Additional Commissioner emphasized the lack of evidence supporting the appellant's claim of self-service, citing a previous court decision where a similar construction activity was deemed taxable under the Finance Act, 1994. The Tribunal noted the absence of documentary evidence supporting the appellant's factual submissions before the adjudicating authority, leading to a ruling against the appellant. The appellant was directed to pre-deposit the specified amount within a given timeline, subject to compliance, to receive a waiver and stay of penalties and interest.

3. The Tribunal highlighted the absence of pleas regarding limitation or financial hardships in the case, focusing on the lack of documentary evidence to support the appellant's assertions of self-service. Despite references to joint venture agreements, sale deeds, and power of attorney, the appellant failed to produce these crucial documents before the adjudicating authority, leading to the ruling against the appellant. The Tribunal emphasized the importance of supporting factual submissions with relevant documentation in such cases to establish a prima facie case.

4. Ultimately, the Tribunal's decision was based on the lack of prima facie evidence supporting the appellant's claim of self-service and non-liability for service tax. The appellant was directed to pre-deposit the specified amount within the given timeline and report compliance to the Deputy Registrar. Upon compliance, there would be a waiver and stay of penalties and interest on the adjudged dues, highlighting the significance of meeting compliance requirements to benefit from the relief granted by the Tribunal.