2015 (8) TMI 806 - AT - Service Tax

Evasion of service tax - execution of works contract - Interest u/s 75 - Penalty u/s 76 & 77 - Benefit of exemption claim - Held that - Pump house and other facilities were erected by the appellant to lift the water from lower level to higher level of canals. In these circumstances, the appellant has made out prima facie case for complete waiver in view of the fact that the period involved is subsequent to October 2009 and during the relevant period, exemption notification was available. - where the projects executed for Government which are not for commerce and industry are not liable to tax, the appellant cannot be found fault with if they entertained a belief that service tax may not be payable, benefit of doubt has to be extended. In such a situation, the demand for the period beyond one year may not be sustainable - Stay granted.

Summary

Issues:
1. Whether the appellant evaded service tax on works contract services.
2. Eligibility of the appellant for exemption under Notification No. 41/2009-S.T.
3. Interpretation of the term "in respect of canals" for works contract services.
4. Prima facie case for waiver of service tax demand.

Analysis:

1. The appellant, a Joint Venture registered under works contract service, faced a show-cause notice alleging evasion of service tax amounting to Rs. 5,08,90,503 for projects executed from October 2009 to September 2010. The projects involved lift irrigation schemes for providing water for irrigation purposes. The appellant argued that the services provided were essential for lifting and distributing water for irrigation, falling under the exempted category of canals not primarily used for commerce or industry.

2. The crucial issue revolved around the eligibility of the appellant for exemption under Notification No. 41/2009-S.T. dated 23.10.2009, which exempts works contract services in relation to canals not primarily used for commerce or industry from service tax. The Tribunal emphasized that the exemption was applicable if the appellant's work could be considered as works contract service in respect of canals, which was crucial for determining the prima facie case.

3. The interpretation of the term "in respect of canals" was pivotal. The Revenue argued for a strict interpretation, stating that the work should directly relate to canals like digging or strengthening embankments. However, the Tribunal referred to legal dictionaries and precedents to establish that the term had a broader connotation, covering work related to canals such as infrastructure facilities and lifting water from lower to higher levels. The Tribunal concluded that the appellant's work fell within the scope of the exemption.

4. Considering the submissions and the meaning of the term "in respect of," the Tribunal found that the appellant had a prima facie case for complete waiver of the service tax demand. The Tribunal granted a stay against recovery during the appeal process, highlighting that the appellant, executing projects for the government not related to commerce or industry, could have reasonably believed that service tax was not payable, warranting the benefit of doubt and waiver of pre-deposit.

In conclusion, the Tribunal ruled in favor of the appellant, granting a complete waiver of the service tax demand and a stay against recovery, acknowledging the eligibility for exemption under Notification No. 41/2009-S.T. for works contract services related to lift irrigation schemes not primarily used for commerce or industry.