2012 (8) TMI 205 - AT - Service Tax

Application for waiver of pre-deposit, interest thereof and equal amount of penalty - Held that - As appellant addressed to the Superintendent, Central Excise, having jurisdiction over his factory, about the activity conducted by them on the tender accepted by ONGC for laying down of pipelines for transportation of gas and despite this, revision authority has not called for any information nor gave any direction/ suggestion to the appellant to classify such activity of manufacture, thus the matter seems to be hit by limitation - application for waiver of pre-deposit of amounts involved is allowed

Summary

Issues:
1. Whether the Service Tax liability, interest, and penalty should be waived.
2. Classification of the activity as Commercial Construction service or Erection, Commissioning, and Installation service.
3. Applicability of limitation in the case.

Analysis:
- Issue 1: Waiver of Service Tax liability, interest, and penalty
The Stay Petition was filed seeking waiver of pre-deposit of Service Tax liability, interest, and penalty. The Tribunal considered arguments from both sides and reviewed the records. The Service Tax amount and penalties were confirmed by the Commissioner as a revisionary authority. The original Show Cause Notice questioned if laying pipelines for ONGC for gas transportation constituted 'Commercial Construction service.'

- Issue 2: Classification of the activity
The appellant's counsel argued that the activity should be classified as Erection, Commissioning, and Installation service rather than Commercial Construction service. They contended that laying pipes for gas transportation does not fall under Commercial Construction service. The Revenue argued the opposite, stating that laying pipelines for gas transportation falls under Commercial Construction service based on the definition, emphasizing the absence of erection and commissioning activities by the appellant.

- Issue 3: Applicability of limitation
The appellant informed the Superintendent of Central Excise about the activity conducted for ONGC, emphasizing a letter dated 21.4.03. The Tribunal noted that despite this communication, the revisionary authority did not seek further information or provide guidance on classification. The Tribunal observed that the matter could be subject to limitation but acknowledged that the adjudicating authority had deemed the activity non-liable to Service Tax, indicating the existence of an alternative perspective.

In conclusion, the Tribunal found the issue arguable and granted a prima facie case for waiver of pre-deposit of amounts involved. The recovery of the amounts was stayed until the appeal's disposal, highlighting the possibility of differing views on the matter and the presence of a prima facie case for the appellant.