2014 (11) TMI 501 - AT - Service Tax

Waiver of pre deposit - Supply of tangible goods service - Site formation & clearances, excavation, earth moving and demolition service - Held that - On perusal of details of the contracts/work orders executed by the appellant for various clients, it prima facie appears that the service provided by them was taxable as the site formation & clearances, excavation, earth moving and demolition service under section 65(105)(zzza), dredging service taxable under section 65(105)(zzb) and supply of tangible goods service taxable under section 65(105)(zzzzj) w.e.f. 16.05.08. It is also seen from the records that the appellant during the period of dispute had recovered an amount of ₹ 25,11,701/- from their customers towards service tax, the details of which are mentioned in para 9 of the Show Cause Notice and this fact is not disputed by the appellant. Though the appellant s plea is that the substantial amount received by them does not represent the turnover for any taxable service, this plea requires detailed examinations of the records which is possible only at the time of final hearing. - Partial stay granted.

Summary

Issues:
- Appellant's liability for service tax on various services provided
- Ex-parte order passed by the Commissioner without hearing the appellant
- Dispute regarding taxable turnover and service tax liability
- Stay application for waiver of pre-deposit of service tax demand, interest, and penalty

Analysis:
1. The appellant had service tax registration for works contract service and supply of tangible goods services. An enquiry revealed that the appellant provided dredging service, site formation, excavation, earthmoving, demolition service, and supply of tangible goods service to various parties without reflecting these transactions in ST-3 Returns or paying service tax. A Show Cause Notice was issued for recovery of service tax amounting to Rs. 1,72,17,199/- along with interest and penalties. The Commissioner confirmed the service tax demand, interest, and penalties in an ex-parte Order-in-Original.

2. The appeal and stay application were filed against the Commissioner's order. The appellant argued that the Commissioner's order was ex-parte, they were not well-versed in legal formalities, and disputed the taxable turnover. The appellant requested a waiver of pre-deposit for the balance amount of service tax demand, interest, and penalty.

3. The Department opposed the stay application, emphasizing the nature of services provided by the appellant and the amount of service tax collected but not paid to the Department. The Department argued that the pre-deposit made by the appellant was insufficient to safeguard the Revenue's interests.

4. The Tribunal considered the submissions and records, noting that the services provided were taxable. The Tribunal observed that the appellant had collected Rs. 25,11,107/- from customers towards service tax. The Tribunal directed the appellant to deposit Rs. 75,00,000/- in addition to the amount already paid within 12 weeks. Upon compliance, the pre-deposit requirement for the balance amount of service tax demand, interest, and penalty was waived, and recovery stayed.

This detailed analysis covers the issues of the appellant's service tax liability, the ex-parte order, the disputed taxable turnover, and the decision on the stay application for pre-deposit waiver.