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2013 (11) TMI 42 - CESTAT KOLKATAStay application - Penalty u/s 78 - services namely, Technical Testing and Analysis Service, Investigation Charges and Transportation Charges/Report and Document Charges etc. rendered in the context of road-construction by Government Agencies and service of road-construction - Exemption from service tax - Scope of Circular No.80/10/04-ST dated 17.09.2004 and Circular F.No. B-I/6/2005-TRU dated 27.07.2005. - Held that:- It is evident from perusal of para 13.13.4 of the Circular dated 17.09.2004 that the definition of construction service specifically excludes construction of roads, airports, railways, transport terminals, bridges, tunnels under long distance pipelines, dams etc. In so far as the liability to pay service tax on Business Support Service is concerned, it is amply clear from the Contract entered into between the Applicant and the third party that the Applicant were appointed as service-provider for maintenance of the building and for providing alleged services. Prima facie, the classification of the said services under the category of Business Support Service does not appear to be correct. We find that in this case, service tax has been demanded on the basis of income during the relevant period on account of various heads in the balance sheet. From the proceedings before the lower authorities, it is not clear as to whether the services were provided as part of construction of road being not examined. The individual contracts quoted by the ld. Consultant have also not been analyzed and the same will be examined during the final hearing. In these circumstances, we are of the view that the Applicant could able to make out a prima facie case for full waiver of predeposit of the dues adjudged and its recovery stayed during the pendency of the Appeal - Stay granted.
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