2014 (3) TMI 269 - AT - Service Tax

Waiver of pre-deposit of Service Tax - Penalty u/s 77 & 78 - commercial or industrial construction service - Cargo handling service - Held that - It is the claim of the Appellant that services under the said category, during the relevant period, had been rendered to various Government agencies, for which they were not required to pay any Service Tax. In support, the Appellant has referred to and relied upon the Board s Circular No.116/10/09-ST dated 15.09.2009. It is the grievance of the department that since the Appellant could not produce relevant work orders, invoices/bills, the claim of the, Appellant could not be examined. However, prima facie we find from the enclosures submitted along with the Appeal Memorandum that the Appellant were in correspondence with the department from time to time in submitting the requisite documents - Following decision of Commissioner of Central Excise, Ranchi vs. Modi Construction Company 2011 (4) TMI 598 - JHARKHAND HIGH COURT - Matter remanded back subject to pre-deposit of Rs. 50 Lakhs. Regarding cargo handling service - Held that - The activity of cargo handling within the factory premises, prima facie, is covered by the judgement of this Tribunal in the case of Modi Construction Co. which has been later upheld by the Hon ble Jharkhand High Court. - since we are remanding the major portion of the demand we also expect that the Ld.Commissioner to examine this issue also in the light of the aforesaid judgements. - Matter remanded back subject to pre-deposit in part.

Summary

Issues: Application for waiver of pre-deposit of Service Tax and penalties under various sections of the Finance Act, 1994.

Analysis:
1. The primary issue in this case was the Application seeking waiver of pre-deposit of Service Tax and penalties amounting to Rs.18.78 Crores and Rs.19.00 Crores respectively, imposed under different sections of the Finance Act, 1994. The Applicant argued that a significant portion of the demand related to construction activities for Government projects, citing Board Circular No.116/10/09-ST dated 15.09.2009 exempting Service Tax for projects under or for the government. The Applicant claimed to have submitted all relevant documents, which were not considered during adjudication. The Ld.Advocate also referred to judicial precedents supporting their position on cargo handling services within factory premises. The Tribunal found merit in the Applicant's contentions and directed a deposit of Rs.50.00 Lakhs while remanding the case for fresh consideration by the adjudicating authority.

2. The Ld.Chartered Accountant for the Applicant highlighted the penalty imposed for delayed submission of information, attributing the delay to changing requirements of DGCEI. The Revenue, represented by Ld.Special Counsel, supported the findings of the Ld.Commissioner. However, with the consent of both parties, the Tribunal decided to dispose of the Appeals at that stage. The Tribunal observed that a major part of the demand pertained to Service Tax on construction services, with the Applicant claiming exemption for services provided to Government agencies. The Tribunal acknowledged the correspondence between the Applicant and the department regarding document submission. Additionally, the Tribunal noted the applicability of judicial precedents on cargo handling services within factory premises, directing the Ld.Commissioner to re-examine the issues in light of these judgments.

3. In conclusion, the Tribunal set aside the impugned order, remitted the Appeals to the adjudicating authority for fresh consideration, and directed the Applicant to deposit Rs.50.00 Lakhs within eight weeks. The Tribunal emphasized that all issues were to be kept open, granting the Appellant a reasonable opportunity of hearing. The Appeals were allowed by way of remand, and Stay Petitions were also disposed of. The judgment highlighted the importance of proper consideration of relevant documents and judicial precedents in tax-related matters, ensuring a fair and thorough examination of all aspects before reaching a decision.