2014 (8) TMI 195 - AT - Service Tax

Waiver of pre deposit - erection commissioning or installation service - commercial or industrial construction services - Availment of CENVAT Credit - Held that - petitioner availed the cenvat credit on input services utilized for rendition of ECIS and utilized the available credit for remitting the service tax due for the other service namely CICS and after availing abatement of 67% under Notification No.1/2006-ST. The petitioner suppressed the fact of rendition of two taxable services, separately showing the considerations received on each of these services. The petitioner also failed to reveal/justify availment of abatement benefits while availing cenvat credit, in the composite returns filed, in the context of obtaining registration only for providing ECIS - petitioner asserts that the petitioner is under a financial stress and is unable to remit the pre deposit required, there is no material on record to substantiate the plea of financial hardship of the petitioner, except bald assertion - Conditional stay granted.

Summary

Issues: Waiver of pre-deposit and stay of further proceedings

Analysis:
1. Background: The petitioner provided both Erection Commissioning or Installation Service (ECIS) and Commercial or Industrial Construction Service (CICS) without registration under the latter category from 2004-05 to 2008-09.

2. Observations: During audits in 2009, it was found that the petitioner availed CENVAT credit for ECIS, remitted service tax for CICS after abatement under Notification No.1/2006-ST, but did not disclose the separate rendition of these services in returns or the distinct considerations received for each service.

3. Show Cause Notice: A notice was issued in 2010 proposing disallowance of benefits under Notification No.1/2006-ST and recovery of service tax, interest, and penalties. The adjudication order in 2011 confirmed a service tax demand of Rs. 49,02,515/- along with interest and penalties.

4. Appeal: The petitioner's appeal was rejected in 2013 by the Commissioner (Appeals) who held that the petitioner did not disclose the separate rendition of services, availed CENVAT credit on ECIS, and thus was not entitled to abatement benefits under Notification No.1/2006-ST.

5. Contentions: The petitioner argued that the separate taxable services could be identified from transactional documents, availed CENVAT credit only on ECIS, and there was no justification for invoking the extended period of limitation.

6. Decision: The Tribunal found no strong merit in the petitioner's case. While acknowledging the financial stress claim, the lack of evidence supporting it led to the denial of full waiver of pre-deposit. The petitioner was directed to remit the assessed service tax and interest within six weeks to avoid appeal rejection. The penalties were waived, and further proceedings stayed upon deposit.

This detailed analysis of the judgment highlights the issues of waiver of pre-deposit and stay of further proceedings, the background, observations, show cause notice, appeal, contentions, and the final decision by the Tribunal.