2013 (12) TMI 920 - AT - Service Tax

Stay application - Demand of service tax - Commercial or Industrial Construction Service - Held that - applicant did not furnish any declaration to exercise the option as envisaged in the said rules. If they had exercised such option, Revenue would have had a chance to know whether option was in respect of on-going project or not and in the second place, there is no indication in the ST-3 returns that payment is in respect of on-going project. So, Revenue had no chance to know that payment under the scheme was being made for project for which service tax was already paid under construction service for the past period - The issue is contentious and it will be decided during the course of decision of appeal - Prima facie case not in favour of assessee - Stay granted partly.

Summary

Issues involved:
1. Applicability of Works Contracts (Composition Scheme for Payment of Service Tax) Rules, 2007 for ongoing projects.
2. Barred by limitation due to the issuance of show cause notice beyond the prescribed period.
3. Requirement of furnishing declaration to exercise the option under the rules.
4. Allegations of suppression due to non-furnishing of option and relevant information in ST-3 returns.
5. Direction for pre-deposit for admission of appeal and stay on the collection of balance dues.

Analysis:

1. The primary issue in this case revolves around the applicability of the Works Contracts (Composition Scheme for Payment of Service Tax) Rules, 2007 for ongoing projects. The appellant had started paying service tax as per the new rule from October 2007 onwards. However, the Revenue contended that the rules were not applicable for ongoing projects, as the option for payment under the said rules could only be exercised for the projects as a whole and not partially. This disagreement led to the issuance of a show cause notice resulting in the confirmation of tax dues along with interest and penalties for a specific period.

2. The appellant raised a defense based on the limitation period, arguing that the demand was barred by limitation as the show cause notice was issued beyond the prescribed period. They highlighted that they were filing ST-3 returns for payment under the new scheme, indicating compliance with the updated regulations.

3. The requirement of furnishing a declaration to exercise the option as envisaged in the rules was a crucial point of contention. The Revenue argued that the appellant did not furnish any declaration to exercise the option, which could have provided clarity on whether the option was in respect of an ongoing project or not. The absence of such information led to ambiguity regarding the nature of the payment being made under the new scheme.

4. Allegations of suppression were raised by the Revenue due to the non-furnishing of the option and relevant information in the ST-3 returns. The Revenue contended that the lack of disclosure amounted to suppression, justifying the invocation of the extended period of limitation in this case.

5. The judgment directed the appellant to make a pre-deposit for the admission of the appeal, emphasizing the contentious nature of the issue. The pre-deposit was set at Rs.50,000, with a stipulated timeline for compliance. Additionally, a stay on the collection of the balance dues arising from the impugned order was granted during the pendency of the appeal, providing temporary relief to the appellant.

This comprehensive analysis encapsulates the key legal aspects and arguments presented in the judgment, shedding light on the intricacies of the case and the judicial decision rendered by the Appellate Tribunal CESTAT Chennai.