ADITYA BUILDERS Vs. CCE

JUDGEMENT

(1.) THE appellant is providing construction services as per the contract agreement to ONGC which involves activities such as civil works of foundation for drilling rig, platform hardening, approach roads etc. Service Tax of Rs. 2,76,597/ - has been demanded from the appellant for the period 2004 -2005 and 2005 -2006 and some differential duty for the year 2006 -2007 with interest as applicable. Equal amount of penalty has been imposed under Section 76 and Section 78 of Finance Act, 1994 and a penalty of Rs. 3,000/ - under Section 77 of Finance Act, 1994. The appellants have deposited full amount of service tax demanded and are challenging portion of the demand on the ground that the appellant is not a commercial concern and therefore tax was not leviable prior to 16.06.05 and are also contesting the penalty.

(2.) LEARNED Chartered Accountant Shri Vipul Khandhar, submits that they have a good case for the period prior to 16.06.05 and being an individual proprietor and not conversant with the nuances law and also in view of the changes made in the law regarding the definition of commercial concern etc., consequent to which the appellant became liable to Service Tax and service tax was not paid and appellant had no intention to evade payment of service tax. He submits that they have a strong case for leniency under Section 80 of Finance Act, 1994 and also a strong case on definition of service tax for portion of the period. Taking note of the arguments advanced by the learned Chartered Accountant and also taking note of the fact that there was a change in the definition for levy of service tax in respect of construction activities and also taking note of the fact that the appellant is an individual proprietor and has already deposited the service tax demanded in full, we consider that it would be appropriate to waive the requirement of pre -deposit and allow stay petition unconditionally during the pendency of the appeal.