2012 (6) TMI 420 - AT - Service Tax

Service tax liability under the category of commercial or industrial construction services as per the explanation added to sub clause zzzh of clause (105) of Section 65 of the Finance Act, 1994 Held that - The present case is not covered by the clause given in parenthesis in the text of the Explanation but covered by the situation envisaged in the main part of the Explanation thereby meaning that the appellant as a builder cannot be deemed to be service provider providing any service in relation to industrial/commercial or residential complex to the ultimate buyers of the property any time before 1-7-2010 - the deeming provision would be applicable only from 1-7-2010 contained in the explanation added to Section 65(105)(zzq) and (zzzh) having only prospective effect - prior to this date, a builder cannot be deemed to be service provider - as the entire dispute in the present case lies prior to 1-7-2010 a prima facie case against the impugned demand of service tax and the connected penalty arises - since appellant paid an amount of over Rs.64 lakhs waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeal in favour of assessee.

Summary

Issues: Stay petition for waiver of pre-deposit of service tax, interest, and penalties under various sections. Interpretation of retrospective effect of an explanation added to sub clause zzzh of clause (105) of Section 65 of the Finance Act, 1994. Validity of service tax liability on amounts received for agreements prior to 1.7.10. Consideration of legal submissions regarding the explanation's validity at the final disposal of the appeal.

Analysis:
1. The appellant filed a stay petition seeking the waiver of pre-deposit of service tax, interest, and penalties totaling Rs.6,20,305 under different sections of the Act. The first appellate authority confirmed these amounts, citing a retrospective effect of an explanation added to sub clause zzzh of clause (105) of Section 65 of the Finance Act, 1994, making the appellant liable for service tax under commercial or industrial construction services.

2. The appellant argued that the explanation, effective from 1.7.10, does not tax agreements entered into or amounts received in advance before this date. They relied on a Board's circular and a stay order of a coordinate bench of the Tribunal in a similar case. The Revenue contended that the explanation, upheld by the Hon'ble Punjab & Haryana High Court, deems any construction service taxable even before 1.7.10, as construction services inherently include an element of service.

3. The Tribunal examined the submissions and records, focusing on the service tax liability concerning amounts received from purchasers before 1.7.10. Referring to a similar case, the Tribunal noted that the appellant had disowned tax liability, emphasizing the explanatory provisions added to the Finance Act, 1994. The Tribunal found merit in the appellant's legal plea, stating that the deeming provision in the explanation has prospective effect from 1.7.10, not applicable to transactions before this date.

4. Considering the legal arguments presented, the Tribunal concluded that the appellant established a prima facie case against the service tax demand and penalties. Noting that the appellant had already paid a substantial amount, the Tribunal granted a waiver of pre-deposit and stayed the recovery of the service tax and penalties until the appeal's final disposal. The Tribunal decided to address the validity of the explanation at the appeal's final disposal, aligning with the decision of a coordinate bench granting an unconditional stay in a similar case.

5. Ultimately, the Tribunal allowed the appellant's application for the waiver of pre-deposit, acknowledging the prima facie case made by the appellant and the precedent set by the coordinate bench. The recovery of the amounts involved was stayed pending the appeal's final resolution, ensuring fairness and due process in the adjudication of the service tax liability issue.