2013 (9) TMI 430 - AT - Service Tax

Commercial and Industrial Construction Servcie - construction of schools and colleges - Abatement under Notification No. 15/04 and 1/06 - According to Revenue, if value of materials supplied by person receiving service was not added in the gross consideration received by the provider of service, abatement under Notification No.15/04 and 1/06 could not be granted Held that - There was no liability on the appellant in respect of such construction, they paid service tax on the value received by them - However, no differential duty liability can arise on account of materials supplied by those schools and colleges. Waiver of Pre-Deposit - Relying upon Larsen & Toubro Ltd. Vs UOI 2007 (4) TMI 197 - MADRAS HIGH COURT Complete waiver of Pre-deposit was allowed to the Assessee - The order was an ex-parte order where there was a likelihood that all the defences of the party had come on record - the demand was worked out based on figures in Profit and loss account rather than contract-wise figures where the position regarding supply of free materials for each contract comes out clearly - The Revenue s argument that construction of schools and colleges will come within the meaning of Commercial or Industrial Construction could not be accepted Stay Petition allowed.

Summary

Issues:
1. Whether the appellants properly discharged their service tax liability for the period 2005-06 to 2009-10.
2. Whether the value of materials supplied by the person receiving service should be added to the gross consideration for granting abatement under Notifications No.15/04 and 1/06.
3. Whether the construction activity for private schools and colleges should be considered as commercial or industrial construction.
4. Whether differential duty liability can arise on account of materials supplied by private schools and colleges.
5. Whether a pre-deposit should be required for hearing the appeal.

Analysis:

Issue 1:
The appellants, engaged in commercial and industrial construction, paid service tax based on their understanding of liability, but the Revenue contended that they had not discharged their liability properly. The Revenue initiated proceedings for recovery of differential tax, leading to a confirmation of tax demand of Rs.6,15,09,648 for the period in question.

Issue 2:
The dispute centered around whether the value of materials supplied by the person receiving the service should be added to the gross consideration for granting abatement under specific notifications. The Tribunal considered various decisions and arguments from both sides regarding the inclusion of material value in the taxable amount.

Issue 3:
A significant point of contention was whether the construction activity for private schools and colleges should be classified as commercial or industrial construction. The appellants argued that no liability should arise on materials supplied by these institutions, citing relevant legal precedents in their favor.

Issue 4:
The question of whether a differential duty liability could arise on account of materials supplied by private schools and colleges was raised. The Revenue argued that due to the nature of the construction activity for these institutions, the appellants should be subjected to a pre-deposit for hearing the appeal.

Issue 5:
The debate extended to whether a pre-deposit should be required for hearing the appeal. The Tribunal considered the arguments from both parties, the nature of the impugned order, and the contentious nature of the issue. Ultimately, the Tribunal granted a waiver of the pre-deposit of dues arising from the order and stayed its collection until the appeal's disposal, considering the facts presented and legal precedents.

This detailed analysis highlights the key legal issues, arguments presented by both parties, relevant legal precedents, and the Tribunal's decision on each matter, providing a comprehensive overview of the judgment.