RADHIKA CONSTRUCTION Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS Stay Petition is filed for waiver of pre -deposit of an amount of Rs. 1,71,963/ - confirmed as Service Tax liability, interest thereof and penalties imposed under Sections 76, 77 & 78 of Finance Act, 1994. The said amounts have been confirmed by lower authorities as dues on the ground that the appellant has received an amount of Rs. 10 lakhs from M/s. J.R. Construction as an advance and has not discharged the Service Tax liability on the said amount under the category of Construction services. Heard both sides and perused the records.

(2.) ON careful consideration of the submissions made by both sides and perusal of the records, we find that the issue involved in this case is taxability of the amount received as an advance and the TDS deducted by various authorities. We find from the records that major portion of the amount is regarding Service Tax liability on the amount received by the appellant as loan from M/s. J.R. Construction. On perusal of the records, we find that M/s. J.R. Construction has very clearly stated that the said amount is indicated in the books of account as unsecured loan. If that be so, prima facie, loans cannot be considered as amount received as an advance and taxable under the provisions of Finance Act, 1994. The appellants, have made out a prima facie case for waiver of the pre -deposit of amounts involved. Accordingly, the application for waiver of pre -deposit of amounts involved is allowed and recovery thereof stayed till the disposal of appeal.