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2007 (12) TMI 211 - AT - Service TaxLaying down of pipeline demand under head Commercial or Industrial services - applicants contention is that the said pipeline was laid down for water supply by Gujarat Water Supply & Sewerage Board (GWSSB) and cannot be said to be a pipeline used primarily for commercial purpose or industry - Appellant has contended that inasmuch as GWSSB is not making any profit on the sale of water and is undergoing losses, the same cannot be considered to be a commercial concern - issue is arguable and final decision cannot be taken at this stage stay granted partly
Issues:
1. Dispensing with the condition of pre-deposit of service tax and penalty. 2. Classification of services provided to Gujarat Water Supply & Sewerage Board and M/s. Gujarat Water Resources Development Corporation Limited. 3. Determining whether the laid-down pipeline was primarily used for commercial or industrial purposes. 4. Argument regarding the commercial nature of the activity undertaken by Gujarat Water Supply & Sewerage Board. 5. Financial hardship and the amount to be deposited by the applicants. Issue 1: Dispensing with the condition of pre-deposit of service tax and penalty The application sought to dispense with the condition of pre-deposit of service tax amounting to Rs. 1,33,10,476 and penalty of Rs. 2,66,20,952. Additionally, a personal penalty was imposed at a daily rate until the service tax payment, with a maximum limit equivalent to the duty amount. The Tribunal considered the arguments presented by both parties and decided that a partial pre-deposit was necessary, directing the applicants to deposit Rs. 40 lakhs towards duty within 10 weeks, after which the remaining amount of duty and penalties would be waived. Issue 2: Classification of services provided to Gujarat Water Supply & Sewerage Board and M/s. Gujarat Water Resources Development Corporation Limited The services provided by the applicants to the mentioned entities for laying down pipelines for water supply were under scrutiny. The Commissioner classified these services as "Commercial or Industrial services" under Section 65(25b) of the Finance Act, 2005. The critical aspect was whether the laid-down pipelines were primarily used for commercial or industrial purposes, which determined the liability to pay service tax. Issue 3: Determining whether the laid-down pipeline was primarily used for commercial or industrial purposes The contention of the applicants was that the pipelines were laid down for water supply purposes and not primarily for commercial use. However, the adjudicating authority relied on an inquiry from Gujarat Water Supply & Sewerage Board (GWSSB) to establish that the water supplied by them was for commercial purposes, as they purchased water from specific entities and sold it to customers at varying rates. This led the Commissioner to conclude that the activity undertaken by GWSSB could be considered a commercial activity. Issue 4: Argument regarding the commercial nature of the activity undertaken by Gujarat Water Supply & Sewerage Board The applicants argued that GWSSB was not making a profit from the water supply and was incurring losses, indicating that it should not be considered a commercial concern. This argument raised questions about the commercial nature of the services provided by GWSSB and whether the activity fell under the scope of taxable services as per the Finance Act, 2005. Issue 5: Financial hardship and the amount to be deposited by the applicants While considering the financial aspect, the Tribunal noted that no significant financial hardship was demonstrated by the applicants. Consequently, a partial pre-deposit amount of Rs. 40 lakhs was deemed appropriate, with a timeline for compliance set at 10 weeks. The decision aimed to balance the interests of the applicants with the requirements of the law regarding pre-deposit conditions for tax liabilities. Compliance was scheduled to be reviewed on a specified date to monitor adherence to the directive. This detailed analysis of the judgment highlights the key legal issues addressed by the Appellate Tribunal CESTAT AHMEDABAD in the case, providing a comprehensive overview of the decision-making process and the considerations involved in each issue.
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