2015 (7) TMI 388 - AT - Service Tax

Waiver of pre deposit - difference between the value reflected in ST3 returns and as shown in the Income ledger of the appellant - Service of formation, clearance, excavation and earth moving - Held that - An amount of ₹ 14 lakhs stands confirmed on the ground of difference between the value reflected in ST3 returns and as shown in the Income ledger of the appellant. Appellants have clarified that the figures reflected in the ledger are inclusive of service tax amounts whereas the figures reflected in the ST3 returns are exclusive of the service tax element. Otherwise also, we find that apart from the said difference, there is otherwise no evidence on record to reflect any clandestine providing of services or undervaluing the services. As such, we are of the view that the appellant has a good prima facie case on the said issue and according demand confirmed is dispensed with. - Stay granted.

Issues:
1. Service tax demand related to site formation, clearance, excavation, and earth moving services provided for the construction of a tailing dam.
2. Unconditional stay granted by the Tribunal for the construction of the dam.
3. Difference in values between ST3 returns and the Income ledger of the appellant.
4. Service tax demand related to the construction of road kerbs.

Analysis:

Issue 1:
The judgment addresses a service tax demand of approximately &8377; 94 lakhs, with &8377; 78.57 lakhs confirmed for services like site formation, clearance, excavation, and earth moving for the construction of a tailing dam provided by the appellant to M/s. Essar Steel Ltd. The Tribunal notes the exemption under Notification No. 17/2005-ST for activities like construction of dams, indicating that such services cannot be taxed under the category of site formation and clearance. The Tribunal finds the impugned order unsustainable and orders a complete waiver of pre-deposit based on the earlier stay orders.

Issue 2:
Considering the unconditional stay granted by the Tribunal in previous orders related to the construction of the dam, the Tribunal dispenses with the condition of pre-deposit for the confirmed service tax amount on this issue. The judgment highlights the consistency of the Tribunal's stance in the appellant's favor through multiple stay orders, ensuring no pre-deposit requirement for the service tax demand.

Issue 3:
An amount of &8377; 14 lakhs is confirmed due to differences between values in ST3 returns and the appellant's Income ledger. The appellant clarifies that the ledger values include service tax amounts, while ST3 returns exclude them. The Tribunal finds no evidence of clandestine service provision or undervaluation, leading to the dispensation of the demand confirmed on this issue, recognizing a prima facie case in favor of the appellant.

Issue 4:
Regarding an amount of approximately &8377; 20,000 related to the construction of road kerbs, considered an activity exempted under construction of roads, the Tribunal acknowledges the exempt nature of this service. Consequently, the judgment allows the stay petition unconditionally and directs the clubbing of appeals from earlier stay orders with the present appeal for final disposal, ensuring a comprehensive resolution of all related issues.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT Bangalore covers the various issues addressed, the Tribunal's findings, and the decisions made concerning the service tax demands and exemptions related to the appellant's activities.

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