2008 (5) TMI 156 - AT - Service Tax

Commercial or Industrial Construction Services - construction activity appellant received from their clients cement and steel of which value they have not added - in terms of Notification No. 15/2004 they are required to add the value of the materials received- Madras High Court on this very issue has granted waiver of pre-deposit and the matter is still under their consideration - out of Rs. 70,32,227/- appellants have already deposited Rs. 31,73,85 - waiver for the balance amount granted

Summary

Issues:

1. Whether the appellant is required to pre-deposit the total Service Tax amount.
2. Whether the appellant should add the value of materials received from clients in their construction activity.
3. Whether the appellant is entitled to waiver for the balance of the pre-deposit amount.

Analysis:

Issue 1: Pre-deposit of Service Tax Amount
The appellant, engaged in construction activity, was directed to pre-deposit a total Service Tax amount. The appellant had already deposited a significant sum but a balance remained. The department argued that the appellant should add the value of materials received from clients, as per the Notification No. 15/2004. The Tribunal noted the appellant's compliance and the Madras High Court's waiver of pre-deposit on a similar issue. Consequently, the Tribunal granted waiver for the balance amount and stayed its recovery until the appeal's disposal, citing precedents from higher courts.

Issue 2: Inclusion of Value of Materials in Construction Activity
The appellant received cement and steel from clients without adding their value in the construction activity. The JCDR contended that the gross amount charged should include the value of materials received, as per the Notification. The Tribunal agreed with this interpretation, emphasizing that the value of materials should be considered in the total amount charged, thereby rejecting the appellant's claim for abatement on these materials.

Issue 3: Entitlement to Waiver
The appellant sought waiver for the remaining pre-deposit amount, citing a strong case on merits and referring to a stay order by the Madras High Court in a similar case. The Tribunal acknowledged the appellant's compliance and the ongoing consideration by the Madras High Court. Considering the deposited amount and the legal precedents, the Tribunal granted waiver for the balance amount and stayed its recovery, ensuring no enforcement even after the expiration of the stay order period as per established judicial decisions.

This judgment by the Appellate Tribunal CESTAT Bangalore addressed the appellant's obligation to pre-deposit the Service Tax amount, the inclusion of material value in construction activity charges, and the entitlement to waiver for the remaining pre-deposit amount. The Tribunal balanced legal interpretations, compliance, and precedents to provide a reasoned decision, aligning with the principles of tax law and judicial precedents.