2008 (5) TMI 83 - AT - Service Tax

Construction of complex appellant submitted that the flats on the land was constructed by their contractor and contractor has already paid the service tax on the same activity - Commissioner (Appeals) has dismissed the appeal for non-compliance of the condition of stay order and not decided the issue on merit. Therefore, the impugned order is set aside and the appeal is remanded to the Commissioner (Appeals) to decide on merits

Summary

Issues:
Delay in filing appeal, waiver of pre-deposit of service tax, inclusion of land value in service tax assessment.

Delay in Filing Appeal:
The applicant filed an application to condone an 11-day delay in filing the appeal. The Vice President allowed the application as sufficient cause was established, thus permitting the appeal to proceed.

Waiver of Pre-deposit of Service Tax:
The applicant sought a waiver of pre-deposit of service tax amounting to Rs. 22,75,355 and penalties. The revenue contended that the applicant, engaged in construction, was liable to pay service tax on construction activity and land value. However, the applicant argued that the contractor had already paid the service tax for the construction activity, and the revenue was attempting to recover the same tax from the applicant. The applicant also claimed that the value of the land should not be included in the assessable value for service tax calculation. The Tribunal found merit in the applicant's case as the contractor had already paid the service tax, which was not considered by the adjudicating authority. Consequently, the pre-deposit of service tax and penalties were waived, and the stay petition was allowed.

Inclusion of Land Value in Service Tax Assessment:
The revenue argued that the applicants, involved in construction activities, were required to pay service tax by including the value of the land as per the provisions of the Finance Act. However, the Tribunal noted that the contractor had already paid the service tax for the same service, and this evidence was presented but not considered by the adjudicating authority. As a result, the Tribunal found a strong case in favor of the applicants. The impugned order was set aside, and the appeal was remanded to the Commissioner (Appeals) for a decision on merits after providing the appellant with an opportunity for a hearing. The appeal was allowed through remand, emphasizing the need for a proper consideration of the issues at hand.