2014 (12) TMI 1041 - AT - Service Tax

Waiver of pre deposit - ineligible benefit of Notification No. 12/2003-S.T - Held that - There is no dispute as to the fact that the appellant herein has been raising separate bills for the service rendered and for the materials supplied. The appellant has been claiming of the benefit of Notification No. 12/2003-S.T. which clearly talks about the availment of benefit if the materials are billed separately. Prima facie, we find that the decision of the Tribunal in the case of Sobha Developers Ltd. (2009 (9) TMI 342 - CESTAT, BANGALORE) may be applicable. Accordingly we find that the appellant has made out a prima facie case for the waiver of pre-deposit of the amounts involved. Application for the waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of the appeals. - Stay granted.

Summary

Issues:
1. Stay petition for waiver of pre-deposit of Service Tax, Demand of Service Tax, Penalty, and Interest.
2. Eligibility of benefit under Notification No. 12/2003-S.T.
3. Interpretation of contract terms regarding billing for materials and services separately.

Analysis:
The appellant filed a stay petition seeking the waiver of pre-deposit of significant amounts related to Service Tax, Demand of Service Tax, Penalty, and Interest. The adjudicating authority had confirmed these amounts, citing that the appellant had availed an ineligible benefit under Notification No. 12/2003-S.T. The appellant argued that they had billed for materials and services separately to their clients, emphasizing that the contract allowed vivisection. Reference was made to a previous decision by a Co-ordinate Bench to support their claim.

The departmental representative contended that the adjudicating authority had extensively discussed the Cenvat credit taken by the appellant on goods but had not elaborated on these findings. The confirmation of the demand was solely based on the premise that the contract could not be considered EPC. Upon reviewing the submissions and records, the tribunal acknowledged that separate billing for materials and services had been done by the appellant. The tribunal noted that the benefit under Notification No. 12/2003-S.T. was contingent on separate billing of materials. Citing the decision in the case of Sobha Developers Ltd., the tribunal found that the appellant had established a prima facie case for the waiver of pre-deposit. Consequently, the tribunal allowed the application for the waiver of pre-deposit and stayed the recovery of the amounts until the appeals were disposed of.