2009 (7) TMI 713

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..... posit waived.
S/Shri M.V. Ravindran, Member (J) and P. Karthikeyan, Member (T) Shri Rajesh Kumar, C.A., for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. [Order per : P. Karthikeyan, Member (T)]. - The appellant M/s. SVC Projects Pvt. Ltd. seeks waiver of pre-deposit and stay of recovery of the dues adjudged against them as follows : (a) Rs. 5,19,526/- (Rupees Five lakh nineteen thousand five hundred and twenty-six only) towards service tax and Rs. 10,391/- (Rupees Ten thousand three hundred and ninety-one only) towards Education Cess demanded under Section 73(1) of the Finance Act, 1994 (the Act). (b) Rs. 91,75,173/- (Rupees ninety-one lakh seventy-five thousand one hundred and seventy-three only) towards service tax and .....

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..... to 1-6-2007. This was contrary to ratio of the decisions of the Tribunal in the cases of Diebold Systems (P) Ltd. [2008 (9) S.T.R. 546 (Tribunal-Chennai)] and Daelim Industrial Co. Ltd. [2006 (3) S.T.R. 124 (T) = 2003 (155) E.L.T. 457 (Tribunal)]. 3. Rs. 5,19,526/- is demanded towards construction service rendered to the Andhra Pradesh Tourism Development Corporation in constructing residential buildings (resorts) under contract. The service involved is construction. The demand is challenged on the basis that the activity was aimed at promoting welfare of tribals in the area and that the construction could not be construed as for commercial purpose and eligible under construction services. Moreover, the appellants constructed the houses u .....

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..... e buildings constructed were for commercial purpose. As the appellants had constructed civil structures under works contracts and 'works contract' became a taxable service only w.e.f. 1-6-07, the same activity could not be taxed under construction service prior to 1-6-07. Also a composite contract could not be vivisected and a portion of it subjected to service tax. This issue stood referred to Larger Bench of the Tribunal vide CCE, Raipur v. BSBK Pvt. Ltd. [2009 (13) S.T.R. 26 (Tri.-Del.)]. 5. We have also heard the learned SDR who submits that the appellants had not substantiated its claim that the impugned activities were carried out under works contracts. No documents had been furnished to the adjudicating authority in proof of payment .....

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