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TMI Blog2013 (1) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... if at all sustainable, should be restricted to an amount calculated at 33% of the gross amount received from the Bank. Therefore, direct the appellant to pre-deposit this amount of Rs.1.25 Crores. In favour of revenue - Service Tax Appeal No.2440 of 2011 - - - Dated:- 4-7-2012 - P.G. Chacko And M. Veeraiyan, JJ. Appellant Rep by: Mr K Hariharan, Consultant. Respondent Rep by: Mr Ganesh Havanur, Additional Commissioner (AR). Per: P.G. Chacko: This application filed by the appellant seeks waiver of pre-deposit and stay of recovery in respect of the adjudged dues which included, an amount of Rs. 3,83,69,417/- demanded towards service tax and education cesses for the period from October 2004 to May 2007. The demand for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors to supply services in readiness for the installation Single point of contact with proactive escalation The Agreement covered a few other services also including 'Maintenance Services'. The learned consultant for the appellant submits that the appellant paid service tax on the 'maintenance services' covered by the above Agreement. Addendum C also laid down the rates and other payment terms in respect of 'site installation services'. Clause 6.1 of Addendum C indicates leviability of service tax and Works contract tax on the activity. It was also stipulated that the appellant would be entitled to charge additional service tax as applicable. It was further stipulated that any increase in service tax would be borne by the Bank an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that, in the event of any part of the demand being sustained under the head 'Construction Services' / 'Industrial or Commercial Construction Services', the appellant should be given the benefit of abatement to the extent of 67% under the Notification No. 1/2006-ST. However, he has not pleaded financial hardships for the appellant. 2. We have heard the learned Additional Commissioner (AR) who, apart reiterating the findings of the adjudicating authority, extensively refers to the terms and conditions of the "Master Solutions Agreement" as also to the previous litigation between the appellant and the department. On merits, it is submitted that the appellant should be precluded from pleading that their activity was in the nature of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid service tax under a different head on a few activities covered by the same Agreement. In other words, the contract was vivisected by the appellant himself for the purpose of payment of service tax and, therefore, as rightly submitted by the learned Additional Commissioner (AR), they are estopped from claiming under 'works contract'. Reverting to the real nature of the activities in question, we prima facie take the view that these activities were covered by the definitions of "Construction Service" (up to 15.6.2005) and "Commercial or Industrial Construction Service" (from 16.6.2005) and, therefore, the appellant is liable to pay service tax. Having prima facie found no merit in the plea of limitation, they are liable to pay the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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