2009 (7) TMI 450 - AT - Service Tax

Non-inclusion of cost of material component for service tax payment - The case of the appellant does not seem to be a major case of involvement of material supply, when the appellant failed to satisfy the authority with cogent evidence. The nature of service appears to be finishing one and that is subject matter of tax under commercial and industrial construction category. Such category is not entitled to the abatement. But to claim deduction of goods used in the works and to immune the same from taxation, the appellant should have come out with clean hands with evidence before Authority below. - Stay granted partly

Summary

Issues:
1. Calculation of tax demand without considering material component.
2. Applicability of abatement formula for pre-deposit.
3. Failure to provide all materials for examination.
4. Denial of benefit under notifications regarding goods and materials sold by the service provider.

Analysis:
1. The judgment revolves around the calculation of tax demand without considering the material component used in the work. The appellant argued that the authorities failed to grant any deduction for the material used, resulting in tax being levied on the composite value of goods and services. The appellant contended that the taxable value consisted of both material and services, and they provided evidence of the material component used in the work. However, the authorities did not consider this aspect, leading to the arising demand.

2. Regarding the applicability of the abatement formula for pre-deposit, the appellant suggested that applying the formula would reduce the pre-deposit amount significantly. The appellant argued that they should not be directed to make the entire pre-deposit of the demand due to this factor.

3. The issue of failure to provide all materials for examination was raised by the department, stating that the appellant deprived them of testing the case thoroughly by not submitting all relevant materials. The department highlighted that the nature of work involved major services with a minor quantity of goods, and the appellant did not come forth with complete information for claiming waiver of pre-deposit, leading to the demand in the adjudication.

4. The judgment also delved into the denial of benefit under notifications regarding goods and materials sold by the service provider. The Order-in-Original specified conditions for availing exemptions and abatements, emphasizing the importance of documenting the value of goods and materials sold or used. The appellant's case did not fulfill these conditions, resulting in the denial of benefits under the relevant notifications.

In conclusion, the Tribunal directed the appellant to make a pre-deposit of a specified amount within a given timeframe, considering the lack of evidence regarding the material component and the failure to meet the conditions for availing exemptions and abatements as per the notifications.