2014 (5) TMI 504 - HC - Service Tax

Penalty u/s 78 Work contract service - taxability prior to 1-7-2007 - Abatement of 67% - Waiver of pre-deposit - the main plank of argument advanced on behalf of the applicant that since there is a cross-fall-breach clause specifying that breach of one contract would also constitute breach of other contract, hence, both these contracts should be read together and accordingly the entire project being a turnkey project, the same is taxable as works contract only w.e.f. 1-7-2007 and not prior to that. - Tribunal directed to make 25% of pre deposit - Held that - an appellant is required to deposit with the adjudicating authority the duty demanded or the penalty levied. However, in any particular case where the Appellate Authority is of the opinion that deposit of duty demanded or penalty levied would cause undue hardship to such person, the Appellate Authority might dispense with such deposit subject to such conditions as he might deemed fit to impose so as to safeguard the interest of revenue. For a hardship to be undue it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it - The impugned order which has been passed without considering the prima facie merits of the submissions of the petitioner cannot be sustained and the same is set aside and quashed - Tribunal shall decide the issue of dispensation of pre-deposit afresh in accordance with law and in the light of the observations made above. The Tribunal may, if it so chooses, proceed to decide the appeal on merits, notwithstanding the pendency of any request for dispensation of pre-deposit - Matter remanded back - Decided in favour of assessee.

Summary

Issues Involved:
1. Challenge to the CESTAT order directing pre-deposit.
2. Nature of the contracts and their tax implications.
3. Alleged wrongful availing of tax benefits under specific notifications.
4. Invocation of the extended period of limitation.
5. Imposition of penalties and interest.
6. Financial hardship and undue hardship considerations for pre-deposit.

Detailed Analysis:

Challenge to the CESTAT Order Directing Pre-deposit:
The petitioner challenged the CESTAT's order directing a pre-deposit of 25% of the confirmed Service Tax within eight weeks, failing which the appeal would be dismissed. The petitioner argued that the requirement for pre-deposit would cause undue hardship and should be waived.

Nature of the Contracts and Their Tax Implications:
The petitioner executed EPC/Turnkey contracts involving separate agreements for the supply of plant, machinery, and equipment and for design, engineering, construction, erection, and commissioning. Despite separate agreements, the contracts were for a composite job against a single bid notice, effectively making them a single contract for a turnkey project. The contracts contained cross fall breach clauses, indicating that a breach of one contract would constitute a breach of the other.

Alleged Wrongful Availing of Tax Benefits:
The petitioner was accused of wrongly availing benefits of Notification No. 19/2003-S.T. and Notification No. 1/2006-S.T., obtaining abatement of 67% duty by not including the value of plant, machinery, and equipment in the taxable value for Service Tax calculation. The petitioner contended that the services rendered did not constitute taxable service prior to 1st June 2007 and were not liable for Service Tax before that date.

Invocation of the Extended Period of Limitation:
The show cause notice invoked the extended period of limitation under Section 73(1) of the Finance Act, 1994, alleging that the petitioner was liable to pay Service Tax on the entire amount received from its customers. The petitioner argued that the proceedings initiated by invoking the extended period were not sustainable in law, as there was no wilful suppression or misrepresentation of facts.

Imposition of Penalties and Interest:
The Commissioner confirmed the demand of Service Tax amounting to Rs. 7,21,52,207/- along with interest under Section 75 of the Finance Act, 1994. Additionally, penalties under Sections 76, 77, and 78 of the Act were imposed. The petitioner contended that Service Tax was payable after deducting the value of materials and goods sold, in terms of Notification No. 12/2003-S.T.

Financial Hardship and Undue Hardship Considerations for Pre-deposit:
The petitioner argued that the pre-deposit requirement would cause undue hardship, referencing several Supreme Court judgments emphasizing the need to consider undue hardship and the interest of revenue. The court noted that undue hardship is not limited to financial hardship but includes prima facie strong or arguable cases in appeal. The impugned order was set aside for not considering the prima facie merits of the petitioner's submissions.

Order and Directions:
The court quashed the impugned order and directed the Tribunal to decide the issue of dispensation of pre-deposit afresh, considering the observations made. The Tribunal was also given the discretion to decide the appeal on merits, notwithstanding the pendency of any request for dispensation of pre-deposit. The petitioner was restrained from transferring, selling, or encumbering its properties or operating its bank accounts, except in the usual course of business, pending the Tribunal's decision.

Conclusion:
The writ application was disposed of with directions for a fresh consideration of the pre-deposit issue by the Tribunal, ensuring that the petitioner's financial and legal arguments are adequately addressed.