B. MURUGAN Vs. COMMR. OF C. EX., THIRUVANANTHAPURAM

JUDGEMENT

(1.) THIS application filed by the appellant seeks waiver and stay in respect of service tax of Rs. 50,20,861/ - demanded for the period from January 2005 to March 2008 and also in respect of penalties imposed on the appellant. The impugned demand of service tax is under the head Commercial or Industrial Construction Services. It is on a taxable value of the work undertaken by the appellant in relation to construction of petrol/diesel bunks for oil companies. The case of the appellant is that they were only executing works contract for the oil companies and hence not liable to pay service tax under any other head for the period of dispute. The learned Counsel for the appellant has also claimed prima facie case on the ground of limitation. It is submitted that the entire demand is beyond the normal period and the same is not sustainable in the absence of valid reasons for invoking the extended period of limitation. It is further submitted that the appellant has financial hardships as evidenced by the Bank statement and allied documents filed by them in support of stay application.

(2.) WE have heard the learned Jt. CDR also who has claimed support from the Tribunals decision in the case of Sunil Hi -Tech Engineers Ltd. v. Commissioner of Central Excise, Nagpur [2010 (17) S.T.R. 121 (Tri. -Mumbai)]. The learned Jt. CDR has particularly pointed out that this Bench ordered pre -deposit in a similar case of M/s. Lalitha Constructions and, therefore, the present appellant also should be directed to make pre -deposit of a reasonable amount. In this connection, a copy of the stay order passed by this Bench on 15 -12 -2011 in Service Tax Appeal No. 2105/2010 of M/s. Lalitha Constructions has been brought on record.

(3.) AFTER considering the submissions, we are of the view that waiver of pre -deposit and stay of recovery can be granted in this case, considering the plea of limitation raised by the appellant. The show -cause notice was issued on 21 -4 -2009 demanding service tax for the period from January 2005 to March 2008. The appellant seems to have brought on record sufficient materials in support of their plea that they did not have intention to evade payment of service tax during the said period. It is their case that they were executing works contract during the said period and hence not liable to pay service tax under the head Commercial or Industrial Construction Services. It has been contextually pointed out by the learned Counsel that the appellant has been paying tax under works contract service after this service became taxable. In the case of Lalitha Constructions (supra) also, we were taking a prima facie view without adverting to the merits of the assessees arguments. In that case, we only considered their plea of limitation and, on that basis, a small part of the service tax demanded was directed to be pre -deposited. In the above scenario, we grant waiver of pre -deposit and stay of recovery in respect of the amounts adjudged against the appellant.