2018 (3) TMI 639

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....y, both the sides submitted that the stay application filed by the appellant praying for waiver of pre-deposit of adjudicated dues is still pending disposal. The appeal can be taken up only on disposal of such application for waiver. Since the matter is almost 4 years old and upon prima facie examination of the merits of the case, we have decided to waive the pre-deposit and take up the appeal itself for final hearing. 2. The brief facts of the case are that the appellant entered into an agreement with Municipal Corporation of Delhi (MCD) for "Covering of Sunehari Nallah from Lala Lajpat Rai Marg (Behind Lodhi Road Hotel) to Dayal Singh College along Lodhi Road & covering of Kushak Nallah from Jawaharlal Nehru Stadium (South Gate) to IVTH ....

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.... roads, MCD allotted the work to the appellant. The original authority confirmed the service tax liability on this work under 'Works Contract Service' mainly based on his assumptions and presumptions without considering the actual facts. The appellants all along maintained that the said facility was created only with reference to Commonwealth Games and there is no commercial usage of the said infrastructure. Even otherwise, when the initial project was clearly earmarked for intended purpose of sports events, the tax liability under WCS cannot be sustained. The WCS covers only civil structures primarily used for the purpose of commerce or industry. In the present case, the facility created by the appellant is not for the purposes of commerce....

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....ivil structure created by the appellant is admittedly used for the said parking facility only. Regarding usage of the said facility, during and after the Commonwealth Games, we note that SDMC vide their letter dated 23.06.2014 clarified that no parking charges were levied during the Commonwealth Games. Thereafter, the said parking facility is being used as road connection between Barapullah Elevated Corridor and the other part of the facility being used for the parking of City Bus Service under the control of GNCTD. We note that in the face of such factual submission, the impugned order erred in making un-supported presumption regarding possible commercial usage, to uphold service tax liability under 'Works Contract Service'. As already not....