2008 (5) TMI 128 - AT - Service Tax

Applicant a provider of construction services availed the benefit of Notification No. 15/2004-S.T.. which permitted them to pay duty on a value which is 33% of the gross amount charged by them on the service receiver non-inclusion of values of steel and cement received, in determining gross amount - entire amount of service tax demanded by the impugned order stands deposited prior to issue of SCN pre-deposit of interest and penalty is waived and recovery is stayed

Summary

Issues:

1. Interpretation of Notification No. 15/2004-S.T. regarding the value of goods supplied by the recipient in construction services.
2. Applicability of Notification No. 4/2005 to determine the gross amount charged for services.
3. Time limitation for demand and imposition of penalties.
4. Suppression of facts by the appellant regarding free supply of steel and cement.

Analysis:

1. The case involved a construction service provider who availed the benefit of Notification No. 15/2004-S.T., allowing them to pay duty on a value which is 33% of the gross amount charged. The issue arose when the recipient supplied items like steel and cement, which were not included in the gross amount. The Commissioner held that the value of these goods should be included, leading to a demand for the differential tax, penalties under Sections 76 and 78, and interest under Section 75.

2. The appellant argued that the demand period was from 10-9-2004 to 31-3-2006, and the amendment in Notification No. 4/2005 clarified that the gross amount should include the value of goods supplied by the provider of construction service, effective from 1-3-2005. The appellant contended that since there was no suppression of facts, the demand was partly time-barred, and no penalty should be imposed. On the other hand, the SDR argued that the notification amendment should apply from 10-9-2004, alleging suppression of the free supply of steel and cement by the service recipients.

3. The Tribunal considered the submissions and noted that the entire demanded service tax amount had been paid before the show cause notice was issued. Consequently, the Tribunal decided to waive the pre-deposit of interest and penalties, staying the recovery until the appeal's disposal. This decision was based on the fact that the tax amount had been deposited in advance, indicating cooperation with the authorities.

4. Overall, the Tribunal's decision focused on the interpretation of the notifications regarding the inclusion of goods supplied by recipients in the gross amount for construction services. The issue of time limitation for demand and imposition of penalties was also addressed, with the Tribunal balancing the interests of the appellant and the tax authorities based on the facts and submissions presented during the hearing.