2013 (8) TMI 783 - AT - Service Tax

Commercial or Industrial Construction Service - whether the cost of free supplied materials should be part of the taxable value Held that - No prima facie case against a part of the demand of service tax Orders passed that as per the Explanation to the abatement notification the provider of Commercial or Industrial Construction Service need not include cost of free supplied materials in the taxable value - LARSEN & TOUBRO LTD. Versus UNION OF INDIA (2007 (4) TMI 197 - MADRAS HIGH COURT). Waiver of pre- deposit - 50% of the duty ordered to be submitted on such submission the stay would be allowed application decided with conditions in the favour of the assessee.

Summary

Issues Involved:
1. Waiver and stay in respect of service tax demand for the period from June, 2005 to March, 2008.
2. Classification dispute of activities under "site formation" or "Commercial or Industrial Construction Service".
3. Inclusion of cost of materials supplied free by clients in taxable value.
4. Prima facie case for appellant against the demand of service tax.

Analysis:

1. The appellant sought waiver and stay for a service tax demand of over Rs.1.68 crores, along with penalties imposed. A significant part of the demand was related to work undertaken under a specific order. The appellant disputed the classification of the activity as "site formation" by the adjudicating authority, claiming it fell under "Commercial or Industrial Construction Service" with abatement. The Tribunal found no prima facie case against this part of the demand due to lack of immediate construction work following the earth excavation works, non-submission of the work order to the department, and allegations of suppression of material facts.

2. Regarding the remaining demand for service tax, the appellant had a prima facie case. The dispute centered on whether the cost of materials supplied free by clients should be included in the taxable value. The appellant argued for the inclusion of abatement under "Commercial or Industrial Construction Service," while the department contended that the activities were primarily "site formation." Citing a precedent, the Tribunal supported the appellant against a major part of this demand, leading to a waiver of pre-deposit and stay of recovery.

3. Another part of the demand pertained to services rendered under "Commercial or Industrial Construction Service" to a client. The dispute revolved around the inclusion of the cost of free materials in the taxable value. The Tribunal found a prima facie case for the appellant based on precedents from the Hon'ble High Courts, which clarified that the cost of free supplied materials need not be included in the taxable value for such services.

4. In conclusion, the Tribunal directed the appellant to pre-deposit a specific amount towards the demand where no prima facie case was found, while supporting the appellant's arguments against other parts of the service tax demand based on legal interpretations and precedents from the High Courts. Compliance with the pre-deposit directive was required within a specified timeline, with reporting obligations to the Deputy Registrar or AR.