2015 (1) TMI 85 - AT - Service Tax

Waiver of pre deposit - Construction of commercial complex service - Non examination of material evidence - Held that - Intention of the parties were to act distinctly on two different contracts and there is no material on record to suggest at this stage that there was wrongful arrangement made by the appellant to cause to prejudice to Revenue. Such intention is not apparent from record. Calling for pre-deposit at this stage shall cause undue hardship to the appellant. - Stay granted.

Issues:
1. Interpretation of the activities carried out by the appellant in relation to land development and construction.
2. Classification of the appellant's activities under relevant sections of the Finance Act, 1994.
3. Dispute regarding the denial of CENVAT credit by the Revenue.
4. Request for waiver of pre-deposit by the appellant during the appeal process.

Analysis:

Issue 1: Interpretation of Activities
The appellant argued that their activities involved two distinct components: development of land with undivided interest of flat buyers and construction of civil structures. They highlighted the existence of separate agreements for transferring land interest and constructing flats, emphasizing the lack of intention to first construct and then sell. The appellant calculated tax liability based on works contract provisions under Section 65(105)(zzzza) of the Finance Act, 1994. However, the Revenue disagreed, asserting that the construction of flats and subsequent sale fell under the taxing entry of 'construction of complex' in Section 65(105)(zzzh).

Issue 2: Classification of Activities
The core disagreement revolved around whether the appellant's activities constituted the construction of a commercial complex with residential components, as claimed by the Revenue, or were distinct operations as per the agreements in place. The appellant's stance was supported by the clear intentions of the parties involved, as evidenced by the executed agreements. The Tribunal noted that there was no evidence at that stage to suggest any wrongful arrangements causing prejudice to the Revenue, thereby leading to a decision in favor of the appellant regarding pre-deposit waiver.

Issue 3: CENVAT Credit Dispute
A significant point of contention was the denial of CENVAT credit amounting to Rs. 30,03,096 by the Revenue without a thorough examination of the material evidence provided by the appellant. This denial was made despite the appellant's assertion that the service component of civil construction should only be subject to tax after considering CENVAT credit on taxable services used for flat construction. The Tribunal acknowledged the need for a proper review of the material evidence before making such decisions.

Issue 4: Pre-Deposit Waiver
Considering the arguments presented by both sides and the lack of conclusive evidence indicating any prejudicial actions by the appellant, the Tribunal granted the appellant's request for a waiver of the balance amount of demand during the appeal process. This decision was made to prevent undue hardship on the appellant, especially since a significant sum had already been appropriated against the adjudicated demand.

In conclusion, the Tribunal's judgment focused on the interpretation of the appellant's activities, the classification under relevant tax provisions, the dispute over CENVAT credit denial, and the decision to grant a waiver of pre-deposit based on the presented arguments and lack of evidence indicating any wrongful arrangements.

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