2011 (3) TMI 617 - AT - Service Tax

Tribunal grants waiver for Service Tax on construction services under Finance Act, 1994

The Tribunal allowed the appellant's application for waiver of pre-deposit of Service Tax, interest, and penalties under the Finance Act, 1994. The ... waiver of pre-deposit - Erection, Commissioning and Installation - It is not in dispute that the appellant is providing a closed conduit for supply of water under pressure to the various mega power projects executed by various contractors - It is a common knowledge that the mega power projects which are installed at the end of the dam in order to generate power by optimally using the water stored in the dams. In our considered view, the appellant has made out a prima facie case for the waiver of pre-deposit of the amounts involved - Decided in favour of the assessee Issues:1. Waiver of pre-deposit of Service Tax, interest, and penalties under the Finance Act, 1994.2. Classification of services as 'Erection, Commissioning, and Installation' or 'Commercial and Industrial Construction Services.'Analysis:1. The appellant filed a stay petition seeking a waiver of pre-deposit of Service Tax amounting to Rs.2,44,29,588 under Section 73(2) of the Finance Act, 1994, along with applicable interest under Section 75, and penalties of 2% per month under Section 76 and Rs.2,45,00,000 under Section 78 of the Act. The demand arose from the appellant allegedly not discharging Service Tax liability for providing 'Erection, Commissioning, and Installation' services. Both sides presented arguments, with the appellant contending that their activities should be classified as 'Commercial and Industrial Construction Services' rather than 'Erection, Commissioning, or Installation' services. The appellant highlighted their construction of tunnels as part of water conveyance arrangements for power projects and relied on specific definitions to support their position.2. The JCDR argued that the appellant's activities fell under the definition of 'Erection, Commissioning, or Installation' as per the amended definition, emphasizing the creation of a closed conduit for water transportation. The JCDR also referred to the definition of 'penstock' from the 'Glossary of Terms relating to River Valley Projects' to support the Revenue's position. After considering the submissions and perusing the records, the Tribunal analyzed the definition of 'Commercial or Industrial Construction Services' under Section 65(25b) of the Finance Act, 1994. The Tribunal noted that the construction of pipelines or conduits was explicitly mentioned in the definition, and the appellant, as a sub-contractor engaged in such construction, fell within the scope of taxable services. However, the definition excluded services related to bridges, tunnels, and dams. Given the nature of the appellant's activities in constructing pipelines for power projects at the end of dams, the Tribunal found that the appellant had established a prima facie case for the waiver of pre-deposit of the amounts in question. Consequently, the Tribunal allowed the application for the waiver of pre-deposit and stayed the recovery pending the appeal's disposal.This comprehensive analysis of the judgment provides a detailed overview of the issues involved, the arguments presented by both parties, and the Tribunal's reasoning leading to the decision regarding the waiver of pre-deposit and the classification of services under the Finance Act, 1994.