2015 (1) TMI 683 - AT - Service Tax

Penalty u/s 78 - Works Contract Service - Held that - In this case it can be seen that the definition itself excludes works contract undertaken in respect of (which means in relation to) dams is excluded. In the case of lift irrigation also, there is a reservoir from which the water is lifted and the reservoir can be considered as a dam and therefore prima facie an assessee is entitled to consider that he is not rendering any taxable service. Further when the works contract is executed for turnkey project including EPC projects, it comes under Clause (e) of the definition to the meaning of works contract given in the definition of works contract . - appellant cannot claim any relief. Here again we find that there was a clarification issued by the Board in Circular No. 116/10/2009-ST dated 15.09.2009 wherein it was clarified that when Government undertakes work in relation to irrigation projects, they are exempted. - appellant has made out a prima facie case for complete waiver. Accordingly the requirement of pre-deposit is waived and stay against recovery is granted during the pendency of appeal. - Stay granted.

Summary

Issues:
Classification of service under 'Works Contract Service'
Applicability of extended period for tax demand
Interpretation of Circular No. 116/10/2009-ST
Entitlement to relief in case of EPC projects
Prima facie case for complete waiver of pre-deposit

Classification of service under 'Works Contract Service':
The appellant, engaged in construction activities, undertook excavation work on EPC basis. The service tax demanded was based on the classification under 'Works Contract Service.' The appellant argued for a stay, citing a previous case where the extended period was not invoked. The AR contended that for EPC contracts, the work not being executed for the Government is irrelevant, referring to a different case for support.

Applicability of extended period for tax demand:
The AR argued that the project being a turnkey one, the work not being executed for the Government does not matter. The definition of 'taxable service' under Section 65 (105) (zzzza) excludes works contracts related to dams. The AR referred to a circular exempting works related to irrigation projects when undertaken by the Government, but the Tribunal did not accept this interpretation, emphasizing that contractors usually execute such works.

Interpretation of Circular No. 116/10/2009-ST:
The AR's argument that the circular exemption applies only when the Government executes the project was not accepted by the Tribunal. They highlighted that contractors, not the Government, typically carry out such projects. The appellant cited a case where the Tribunal found the extended period applicable due to a partner's tax payment in a similar project, indicating lack of bona fide belief regarding tax liability.

Entitlement to relief in case of EPC projects:
The Tribunal considered the appellant's case for a complete waiver, referencing previous decisions and the lack of clarity regarding tax liability. They granted a stay against recovery during the appeal's pendency, acknowledging a prima facie case for relief.

This judgment delves into the classification of services under 'Works Contract Service,' the applicability of the extended period for tax demands, the interpretation of circulars related to exemptions, entitlement to relief in EPC projects, and the criteria for a complete waiver of pre-deposit. The Tribunal analyzed various legal precedents and interpretations to determine the appellant's eligibility for relief and the stay against recovery during the appeal process.