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2014 (3) TMI 604 - AT - Service TaxWaiver of predeposit of Service Tax - Imposition of penalty u/s 76 & 78 - Held that - service tax liability on the Applicant has been fastened on the ground of rendering taxable service namely, commercial as well as residential construction services for the period from 2004-05 to 2007-08 - after allowing the abatement and ignoring the principle laid down in Jaihind Projects Ltd. s case (2010 (1) TMI 186 - CESTAT, AHMEDABAD), the liability would be reduced to Rs.42.00 lakh. - Considering the financial hardship pleaded by the Applicant, we are of the view that the offer made by the ld. Chartered Accountant to deposit Rs.20.00 lakh out of the said liability of Rs.42.00 lakh, is reasonable. - stay granted partly.
Issues: Application for waiver of predeposit of Service Tax and penalties under Sections 78 and 76 of the Finance Act, 1994.
Analysis: 1. The Applicant sought waiver of predeposit of Service Tax amounting to Rs.1.63 crore and penalties under Sections 78 and 76 of the Finance Act, 1994. The Applicant was engaged in providing construction services from 2004-05 to 2007-08. The confirmed demand was raised due to non-payment of service tax during that period. The Chartered Accountant representing the Applicant argued that errors in calculation, including non-taxable receipts, led to an excess demand of Rs.38.00 lakh. The denial of benefit under Notification No.15/2004-ST was contested based on recent judgments, asserting that the value of 'free issue materials' should not be included in the taxable value of services rendered. 2. The Tribunal acknowledged the arguments presented by the Applicant's Chartered Accountant. It observed that the excess demand of Rs.38.00 lakh was due to the inclusion of non-taxable receipts in the taxable value. The issue of denial of Notification No.15/2004-ST was analyzed, noting that the Commissioner's decision relied on a previous Tribunal judgment that had been questioned by a Larger Bench in a different case. Considering the financial hardship faced by the Applicant, the Tribunal found the offer to deposit Rs.20.00 lakh out of the reduced liability of Rs.42.00 lakh reasonable. The Tribunal directed the Applicant to make the deposit within 12 weeks, with the balance dues waived and recovery stayed during the appeal process. 3. The Tribunal's decision was based on the findings that the excess demand was a result of errors in calculation and inclusion of non-taxable receipts. The Tribunal also considered the evolving legal interpretations regarding the inclusion of 'free issue materials' in taxable value, emphasizing recent judgments that supported the Applicant's position. The Tribunal balanced the financial hardship faced by the Applicant with the need to address the outstanding tax liability, ultimately allowing a partial deposit and waiving the remaining dues during the appeal period. This detailed analysis highlights the key arguments, legal interpretations, and the Tribunal's decision regarding the waiver of predeposit of Service Tax and penalties under the Finance Act, 1994.
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