TRIVEDI ASSOCIATES Vs. COMMISSIONER OF SERVICE TAX

JUDGEMENT

(1.) THE appellants are engaged in construction of petroleum outlets for M/s. Indian Oil Corporation Ltd. and on the ground that the appellant has not paid the Service Tax under the category of Commercial or Industrial Construction during the year September, 2004 to October, 2005, proceedings were initiated which culminated into demand of Service Tax of Rs. 2,31,317/ - with interest and penalty under Sections 77 and 78 of Finance Act, 1994. Ld. Consultant appearing on behalf of the appellant submitted that the lower authorities did not take note of the fact that in several projects, the demand included the amount received for services rendered prior to 10 -9 -2004, the date of introduction of service into the tax net. He annexed the details of such dates not included. Further, he also submits that the contract has to be treated as Works Contract and therefore there is no liability for the period prior to 1 -6 -2007. He also submits that the financial condition of the appellant is very bad and the appellant is not in a position to make any pre -deposit.

(2.) LD . AR would submit that the lower authorities have considered the amount relating to the period prior to 1 -9 -2004 and draws my attention to the annexure of the show cause notice, wherein the allowance has been given and the amount has been deducted in respect of the bills raised prior to 10 -9 -2004. He also submits that the claim that the service falls under the works contract, was not made before both the lower authorities and on verification, it was found that even before Tribunal, in the appeal memorandum, there was such claim made.

(3.) IN view of the above, the appellant has failed to make out a prima facie case in his favour on merit or on the ground of financial difficulty. Accordingly, the appellant is directed to deposit the demand of Service Tax confirmed i.e. Rs. 2,31,317/ - (Rupees Two lakhs, Thirty One Thousands, Three Hundred and Seventeen only) within a period of eight weeks from today and report compliance on 23 -11 -2012. Subject to such compliance being reported, the application for waiver of pre -deposit of balance amount involved is allowed and recovery thereof stayed till the disposal of appeal.