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Issues involved: Condonation of delay in appeal filing, applicability of service tax on construction services for BSNL, plea raised for exemption based on CBEC letter.
Condonation of delay: The Tribunal allowed the condonation of delay of 26 days in filing the appeal due to the appellant's illness, as the case papers were returned late after the appellant fell seriously ill. The delay was considered justified, and the application for stay was taken up subsequently. Applicability of service tax: The demand was confirmed on the basis that the applicants were providing commercial and industrial construction services by constructing foundation bases for BSNL's towers and buildings. The applicants argued that since BSNL is a government undertaking not engaged in commercial activities, they should be exempt from service tax as per a CBEC letter. However, as this argument was not raised before the lower authority and was presented for the first time in the appeal, no prima facie case for unconditional waiver was established. The Tribunal directed the assessees to deposit a specified amount towards the tax within four weeks, with the balance tax, interest, and penalties being waived and recovery stayed pending the appeal. Non-compliance would lead to vacation of stay and dismissal of the appeal. Conclusion: The Tribunal allowed the condonation of delay in filing the appeal, but required the assessees to deposit a sum towards the tax amount within a specified period. The plea for exemption based on BSNL's status as a government organization was not considered sufficient for unconditional waiver of tax liabilities.
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