2014 (12) TMI 376 - AT - Service Tax

Exemption under notification No. 1/2006-ST - willful mis-statement / suppression - Abatement of 67% - completion and finishing services - Held that - It is prima facie obvious that benefit of notification No.1/2006-ST is not available to the appellants in respect of impugned service namely, completion and finishing service in view of the said service having been specifically excluded from the purview thereof. However, they cannot be disallowed to claim the benefit of notification No. 12/2003-ST and the same can be claimed by them even at this stage. However, the benefit of the said notification (No. 12/2003-ST) can be extended only if they satisfy the condition subject to which the benefit thereunder can be granted. It is seen that for the benefit of notification No.12/2003-ST the appellants have to show documentary evidence specifically indicating the value of goods/ material sold. The appellants claim that they have paid the VAT on 80% of the value may possibly be an indicator of the value of goods involved but it cannot be accepted on the face value in the absence of any documentary evidence to the effect that the said VAT was indeed paid on the goods/material used in respect of the service on which impugned demands have been confirmed. While at the stage of deciding their stay application, it is not possible to go into the details of the evidence with regard to the value of such goods and materials sold by the appellants, the fact remains that they have already paid the service tax on 33% of the gross amount received. In view of the this, and having overall regard to the appellants contention about the goods and materials being a substantial part of the gross amount received, we are of the view that the requirement of section 35F of the Central Excise Act 1944 would be fairly met with a pre-deposit of ₹ 60 lakhs with proportionate interest. - Partial stay granted.

Summary

Issues:
1. Applicability of notification No. 1/2006-ST on completion and finishing services.
2. Eligibility for benefit under notification No. 12/2003-ST based on VAT payment.
3. Requirement of pre-deposit for stay application.

Analysis:

1. The appellants claimed exemption under notification No. 1/2006-ST for completion and finishing services but were denied as the service was excluded. The adjudicating authority found willful mis-statement in claiming 67% abatement. The Tribunal noted the exclusion but allowed the benefit of notification No. 12/2003-ST if conditions were met. The appellants were directed to pre-deposit Rs. 60 lakhs with interest to stay recovery during the appeal, failing which dismissal was ordered.

2. The appellants argued for benefit under notification No. 12/2003-ST, citing VAT payment on 80% of the gross amount received for goods used in services. The Tribunal acknowledged the possibility but required documentary evidence of VAT payment on goods/materials related to the service. Despite the VAT claim, the Tribunal ordered a pre-deposit of Rs. 60 lakhs with interest for the stay application, considering the appellants' contention on the value of goods/materials in the service.

3. Regarding the pre-deposit for the stay application, the Tribunal emphasized compliance with section 35F of the Central Excise Act, 1944, and section 83 of the Finance Act, 1994. The appellants were instructed to deposit Rs. 60 lakhs with proportionate interest within 6 weeks, with a compliance report due by a specified date. Non-compliance would result in the dismissal of the appeals for lack of pre-deposit, allowing the recovery of the remaining Service Tax demand, interest, and penalties during the appeal's pendency.