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TaxTMI 
TaxTMI 
TaxTMI 
2011 (5) TMI 559
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.... to what extent. 2. It is now well settled that merely because a prima-facie case is made out, an interim order should not be passed waiving the requirement of predeposit unless the balance of convenience is also clearly in favour of waiving the requirement of predeposit and there should not be likelihood of prejudice to public interest. It is also well settled that the considerations of undue hardship and safeguarding interest of revenue, both have to be kept in view. These principles emerge from the following decisions : (i) AC Vs. Dunlop India Ltd. : 1985 (19) ELT 22 (SC); (ii) Benara Valves Ltd. Vs.CCE : 2006 (204 (ELT 513 (SC) (iii) Siliguri Municipality & Others Vs. Amalendu Das & Others : AIR 1984 SC 653; (iv) Ravi Gupta Vs. Commr. Of Sales Tax : 2009 (237) ELT 3 (SC) (v) CCE, Guntur Vs. Shree Chaitanya Educational Committee : 3. We find that the main crux of the arguments advanced by the ld. Sr.Advocate for the appellants is that the requirement of predeposit should be waived and the matter should be referred to the Larger Bench doubting the correctness of the Larger Bench ....
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....ench against the order of the Larger Bench in BSBK (supra) at the prima-facie stage itself, before we have heard the appeal on merit, cannot at all be entertained. 6. We are now taking up for consideration the case of the appellants for grant of waiver from the requirement of predeposit on the yardsticks laid down by the Hon'ble Supreme Court in the decisions cited above. 7. In this case, the tax demand is for the period from 10.9.04 to 31.3.07. The adjudicating Commissioner has demanded a differential tax amount of Rs.1,66,06,432/- after taking into account the tax amount already paid by the appellants for the period in dispute and in addition he has imposed a penalty of Rs.1,75,00,000/-. He has also demanded interest which is not quantified. During the relevant period, the appellants have taken registration as provider of commercial construction services and construction of residential complex services. The appellants had already paid an amount of Rs.76,85,552/- by cash and 51,17,844/- through credit for the first category of services and Rs.1,50,58,007/- by cash and Rs.7,00,773/- by credit for the second category of services. It is not a case where the appellants have taken a ....
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....provision of law. Secondly, the law makers must have had good reason to exempt the tax payers who have received the amount before this service was brought into tax net. One possible reason could have been that since the tax was levied from the future date, the tax payer could not have anticipated the same and could not have collected the tax amount from his customer when he received the payment for the services in advance prior to imposition of the tax. As such, we are of the view that in respect of the amount of Rs.37,43,887/-, the appellants have made out a prima-facie case in favour of waiver of predeposit. This is subject to verification of the figures as according to the ld. Jt. CDR this amount is not more than Rs.1,15,225/-. 10. As regards the remaining major amount of tax demand of Rs.1,12,45,661/-, we find that this demand has been made in respect of construction of premises that the appellants have made for the land owners. We have heard arguments in respect of this amount at length. In this regard, the appellants have agreed that the construction done for the land owners is taxable service vide paragraph 4.2 of their appeal memo. However, they are contesting the demand c....
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....emand of Rs.1,54,399/- after taking into consideration that the abatement of 67% was not allowed into consideration that the abatement of 67% was not allowed in that case. He pleads that since 67% abatement has been already allowed in the present case, hence full predeposit should be ordered in this regard. 12. The appellants have also taken a ground that only w.e.f. 1.6.2007, the works contract has been brought into service tax net and before that date, no tax is leviable on them as the same is only in the nature of works contract. We find that this plea is not taken by them initially and, in fact, as recorded above, they have taken registration under the service tax and have paid the tax amount as determined by them. Subsequently, when show-cause notice was issued for the differential tax amount, at that stage also, they did not raise this issue before the adjudicating Commissioner. As pointed out by the ld. Jt. CDR, they have taken this ground only while contesting the differential tax demand before the Tribunal. It is argued by the appellants that a legal ground can be taken at any stage. But as pointed out by the ld. Jt. CDR in this regard, the levy on works contract was brou....
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.... the judgment of Daelim Industrial Co. Ltd. vs. CC, Vadodara has been dismissed, the dismissal being summary dismissal without recording any reason, the same does not lay down any law and is not a binding precedent. The Tribunal's judgment in the case of Daelim Industrial Co. Ltd. (supra) has been over-ruled by the Larger Bench of the Tribunal in the case of CCE, Raipur vs. BSBK referred in 2010 (253) ELT 522 (CESTAT-LB). Moreover, the judgment of the Tribunal in the case of Daelim Industrial Co. Ltd. is based on the proposition that an indivisible works contract cannot be vivisected for charging Service Tax on its service component. As discussed above, in our view, this proposition itself does not appear to be correct as, during the period prior to 1-6-07, in the absence of any definition of the term 'works contract' in the Finance Act, 1994, this term has to be understood in generic sense, i.e. a contract for work and labour which would be nothing but service contract whether involving the use of goods or not and if such service contract is for a taxable service, the same would attract Service tax. The question of vivisection of an indivisible works contract is not relevant at al....