2014 (5) TMI 649 - AT - Service Tax

Waiver of pre deposit - construction of residential complex and commercial or industrial construction - Held that - Prima facie, in view of the decision of this Tribunal in Macro Marvel Projects Ltd. vs. CST, Chennai reported in 2008 (9) TMI 80 - CESTAT, CHENNAI and the absence of any attribution in the show cause notice or in the impugned adjudication order that constructions by the petitioner were in relation to construction of residential complex service, since more than 12 residential units were constructed and since there is no finding recorded that the residential units were not for the personal use of the recipient in terms of the statutory definition, in particular the explanation set out in Section 65 (91a) of the Act, we see a strong prima facie case in favour of the petitioner - On the aforesaid prima facie analysis and as the entire assessed liability to service tax is predicated on the conclusion that the petitioner had provided construction of commercial complex service to Vikas Parishad and commercial or industrial construction service to several institutions for promotion of educational objectives, we grant waiver of pre-deposit in full stay all further proceedings for realization of the adjudicated liability, pending disposal of the appeal - Stay granted.

Summary

Issues involved:
1. Appellant challenging adjudication order confirming service tax liability.
2. Allegations of short-remittance and tax evasion by the appellant.
3. Interpretation of relevant provisions for service tax on construction services.
4. Disputed consideration received for various construction services.
5. Exclusion of certain services from taxable categories.
6. Contentions rejected by Adjudicating Authority.
7. Petitioner seeking waiver of pre-deposit and stay of proceedings.
8. Prima facie case analysis by the Tribunal for petitioner's favor.

Analysis:
1. The appellant contested the adjudication order confirming a service tax liability of Rs. 1,68,09,599/- covering two periods based on allegations of short-remittance and tax evasion. The Revenue claimed the appellant provided construction services to multiple bodies, suppressing facts to evade tax, invoking an extended limitation period for the first show cause notice.

2. The appellant provided construction services to various bodies, including educational institutions and state instrumentalities, contending different tax treatment based on service categories. The appellant disclosed and remitted tax for commercial or industrial construction services but omitted consideration for services believed to be excluded from taxable categories.

3. Despite the appellant's interpretations of the Act, the Adjudicating Authority upheld the tax liability, rejecting contentions regarding construction services for educational institutions and residential complexes. The appellant's accrual-based accounting for certain services was not considered for tax remittance, leading to the disputed liability.

4. The Tribunal analyzed the prima facie case, favoring the appellant based on precedents and interpretations of the Act. For services related to residential complexes and educational institutions, the Tribunal found potential exclusion from taxable categories, citing relevant circulars and decisions supporting waiver of pre-deposit.

5. Considering the appellant's arguments and the absence of specific findings supporting tax liability for certain services, the Tribunal granted full waiver of pre-deposit and stayed further proceedings pending appeal disposal. The Tribunal's decision was based on the perceived lack of conclusive evidence supporting the assessed service tax liability, particularly for construction services provided to specific bodies.

This detailed analysis covers the issues involved in the legal judgment, highlighting the contentions, interpretations, and outcomes related to the appellant's challenge against the service tax liability confirmation.