2014 (8) TMI 666 - AT - Service Tax

Waiver of pre-deposit of Service Tax - Availment of CENVAT Credit - Works contract service - Held that - On perusal of Rule 2A of Service Tax (Determination of Value) Rules, 2006, we do find that the said provisions start with the wordings Subject to the provisions of Section 67 . If this is the case, we find that the provisions of Section 67 may also be applicable for valuation purposes. We also find prima facie force in the contentions raised by the ld. Counsel that the appellant had an option to discharge the Service Tax liability under the Works Contract Composition Scheme for payment of Service Tax - appellant has made out a prima facie case for waiver of pre-deposit of the amounts involved. Accordingly, the application for waiver of pre-deposit of balance amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Stay granted.

Summary

Issues:
Waiver of pre-deposit of Service Tax, interest, and penalty based on CENVAT credit eligibility and Works Contract Composition Scheme.

Analysis:
The appellant filed a Stay Petition seeking waiver of pre-deposit of Service Tax, interest, and penalty amounting to &8377; 2,54,24,963/-. The adjudicating authority confirmed the amounts due, citing the appellant's ineligibility to avail CENVAT credit for inputs and input services due to providing works contract services. The authority stated that the appellant should have paid 4% of the works contract value as Service Tax under the composition scheme.

The appellant's counsel argued that as per the Service Tax (Determination of Value) Rules, 2006, specifically Rule 2A(1), the provisions are subject to Section 67, which governs the main charging section. The counsel contended that the Service Tax liability should be discharged on the aggregate value, which the appellant did by paying Service Tax on the works contract value. The appellant also claimed to have availed credit on input services and Central Excise duty paid on inputs used for output services.

The Departmental Representative (D.R.) contended that by paying more Service Tax than the composition scheme required, the appellant unintentionally benefited the service recipient by utilizing CENVAT credit on inputs and input services.

The Tribunal noted that the issue was a legal question. Upon reviewing Rule 2A of the Service Tax (Determination of Value) Rules, 2006, which starts with "Subject to the provisions of Section 67," the Tribunal found that Section 67 might be applicable for valuation purposes. The Tribunal acknowledged the appellant's option to discharge Service Tax liability under the Works Contract Composition Scheme. The Tribunal found merit in the appellant's contentions and allowed the waiver of pre-deposit, staying the recovery until the appeal's disposal.

The Tribunal decided that all legal issues raised by the D.R. could be addressed during final disposal. The Tribunal concluded that the appellant established a prima facie case for the waiver of pre-deposit, allowing the application and staying recovery until the appeal's resolution.