2014 (2) TMI 411 - AT - Service Tax

Appellant liable for service tax demands, granted waiver and stay balancing liability and financial challenges

M/s. Mack Telecom Services Pvt. Ltd. Versus The Commissioner of Service Tax Bangalore

The Tribunal found the appellant liable for service tax demands for the periods 2003-05, as they had been paying tax for similar activities before ... Waiver of pre-deposit - Abatement Benefit of Notification No. 1/2006 - ‘Erection, Commissioning and Installation Service – service provided by the assesse to telecom operators by way of fabrication and installation of telecom towers – the assesse paid in cash claiming abatement to the extent of 67% of the total value under Notification No. 1/2006 - Whether the benefit of abatement under the Notification No. 1/2006 could be claimed by the assessee – Held that:- The assesse was prima facie liable to pay the entire amount of service tax demanded u/s 11D of the Central Excise Act - Assesse reversed the CENVAT credit thereby qualifying themselves for the benefit of abatement - After claiming such abatement they paid the amount towards the demand - the plea of limitation as well as the plea of financial hardships had also been considered. - stay granted partly. Issues:1. Appellant's request for waiver and stay of adjudged demands related to service tax and education cess for different periods.2. Applicability of Section 11D of the Central Excise Act.3. Arguments regarding liability to pay service tax for the period prior to 16.06.2005.4. Plea of limitation against the demand of over Rs. 4.2 crores.5. Financial hardships plea by the appellant.Analysis:1. The appellant sought waiver and stay regarding three adjudged demands for service tax and education cess. The demands included amounts for the periods 2003-05 and 2005-09, totaling over Rs. 4.2 crores. The services in question were related to 'Erection, Commissioning and Installation Service' provided to telecom operators through fabrication and installation of telecom towers.2. The appellant had paid the amount demanded for the period 2003-05 and claimed abatement for the period 2005-09 under Notification No. 1/2006 ST. The issue arose concerning the applicability of Section 11D of the Central Excise Act. The appellant argued that since they were not liable to pay service tax before 16.06.2005, Section 11D should not be applied. The appellant also raised the plea of limitation against the demand for over Rs. 4.2 crores.3. The Additional Commissioner contested the appellant's arguments, stating that the appellant had been paying service tax since 1998 under a different category. Hence, the argument that they were not liable before 16.06.2005 was refuted. The contention regarding time-bar was also challenged.4. The Tribunal found the appellant's arguments against the demand under Section 11D for the period 2003-05 not acceptable. It was noted that the appellant had been paying service tax for the same activity before 16.06.2005 under a different category. Therefore, the appellant was considered liable for service tax even before 16.06.2005. However, for the period 2005-09, the question was whether the appellant could claim abatement under Notification No. 1/2006 ST. The Tribunal directed the appellant to pre-deposit Rs. 20 lakhs within six weeks, considering the plea of financial hardships.5. The Tribunal's decision balanced the liability of the appellant for the service tax demands with considerations of limitation and financial hardships. The appellant was directed to make a pre-deposit, and upon compliance, waiver and stay were granted for the remaining dues.This detailed analysis covers the issues raised in the judgment, including the arguments presented by the parties and the Tribunal's findings regarding the liability for service tax demands and related pleas.