2014 (2) TMI 148 - AT - Service Tax

Demand raised before 01-06-2007 - Waiver of pre deposit of tax - Erection, commissioning or installation service - Service rendered to Delhi Metro Rail Corporation Ltd. - Held that - demand under the erection, commissioning or installation service is not sustainable and the demand under the works contract service prior to 01/06/2007 is also not sustainable - applicant has made out a prima facie case for waiver of pre deposit of entire amount of tax along with interest and penalty and the stay of recovery is granted - Stay granted.

Summary

Issues:
Waiver of pre-deposit of tax for the period August 2006 to September 2009 under the category of "erection, commissioning or installation service" - Applicability of works contract service - Demand under different service categories - Prima facie case for waiver of pre-deposit.

Analysis:
The applicant sought waiver of pre-deposit of tax amounting to Rs.86,38,951 for services provided to Delhi Metro Rail Corporation Ltd. The dispute arose regarding the categorization of services provided, specifically whether they fell under "erection, commissioning or installation service" or works contract service. The applicant argued that services rendered to Railways were excluded from the definition of works contract service post the introduction of works contract service on 01/06/2007. The Revenue, represented by the AR, contended that the adjudicating authority rejected the claim under works contract service and demanded tax under erection, commissioning, or installation service, providing detailed reasons in the adjudication order.

In response, the applicant's advocate highlighted a previous Tribunal decision in the applicant's own case, where it was held that the demand under erection, commissioning, or installation service was not sustainable, and similarly, the demand under works contract service before 01/06/2007 was also not sustainable. Considering these arguments and the fact that the demand prior to 01/06/2007 was pending before a 5 Member Bench of the Tribunal in another case, the Tribunal found merit in the applicant's submissions. Consequently, the Tribunal concluded that the applicant had established a prima facie case for the waiver of pre-deposit of the entire tax amount, including interest and penalty. As a result, the Tribunal granted a stay of recovery, allowing the applicant's stay application.

In the final decision, the Tribunal acknowledged the arguments presented by both sides and recognized the legal precedents cited by the applicant. The Tribunal's ruling, delivered in open court, confirmed the grant of the stay application, thereby allowing the waiver of pre-deposit of tax and providing relief to the applicant in the disputed tax matter related to the services provided to Delhi Metro Rail Corporation Ltd.