2013 (11) TMI 1409 - AT - Service Tax

Stay application - Waiver of pre deposit - Management, maintenance and repair services - Section 65(64) - Held that - so far as strengthening/replacement of damaged fencing and maintenance of Border Security fencing is concerned, the adjudicating authority proceeded, on what prima facie appears to be a creative interpretation of the transaction and the relevant provision - where individual residential units are constructed, the transaction falls outside the purview of construction of complex service, defined in Section 65(30a) - service tax assessed under management and maintenance of repair service and construction of residential complex service is prima facie unsustainable for the above reasons and in respect of service tax assessed for works contract; erection, commissioning and installation services and manpower recruitment, since service tax availing the cum duty benefit and abatement entitlement has been remitted. Tax component assessed under works contract service for false ceiling executed by the petitioner in the conference Hall for military station hqrs. We prima facie find no justification for waiver of pre-deposit on this amount - As service tax on cum duty basis and after availing abatement benefit has been remitted in respect of the other three components, we are of the view that the petitioner has made out a case for waiver of pre-deposit in full and stay of further proceedings for realisation of the adjudicated liability, assailed in the substantive appeal related to this application, pending disposal of the appeal - Partial stay granted.

Summary

Issues:
1. Assessment of service tax demand and penalties under various sections of the Finance Act, 1994.
2. Petitioner's applications for waiver of pre-deposit and stay of further proceedings pending appeal.

Analysis:
Issue 1: The judgment addresses the assessment of service tax demand and penalties under different categories. The first appeal involved the confirmation of service tax demand of Rs.82,38,911/- with penalties under various sections of the Finance Act, 1994. The second appeal dealt with a demand of Rs.3,95,485/- along with penalties and interest. The assessed tax liability included various services such as management, maintenance, repair services, construction of residential complex, works contract services, and manpower recruitment services.

Issue 2: The petitioner sought waiver of pre-deposit and stay of proceedings pending appeal. The Tribunal analyzed each category of service tax demand separately. In the case of management, maintenance, and repair services, the Tribunal found the levy of service tax prima facie unsustainable due to creative interpretations by the adjudicating authority. The Tribunal also considered exemptions claimed by the petitioner for certain services, such as repair and maintenance of roads inside a Thermal Power Station and construction of individual residential units for police lines. The Tribunal granted waiver of pre-deposit in full for some categories while requiring partial deposit for others based on the merits of each case.

The judgment highlighted discrepancies in the interpretation of legislative provisions by the adjudicating authority and provided relief to the petitioner by granting waivers and stays based on the specific circumstances of each service category. The Tribunal's analysis focused on the legal validity of the service tax demands and penalties imposed, ensuring a fair and just decision in each instance.