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2015 (10) TMI 227 - CESTAT KOLKATAWaiver of pre-deposit of Service Tax - civil construction activities - Turn-Key Project - availing cenvat credit while availing benefit of abatement - Penalty u/s 78 & 77 - Held that:- As per the Notification No. 01/2006-S.T., dated 1-3-2006, as was applicable during the relevant period, the services provided on ‘Erection, Commissioning or Installation Services’ and ‘Commercial or Industrial Construction’, the services were leviable after allowing the abatement of 67% of the taxable value, subject to the condition that no Cenvat credit of Service Tax on Inputs or Capital Goods or Input Services used for providing such taxable service, had been taken under the provisions of Cenvat Credit Rules, 2004. It is not in dispute that the applicant had availed the credit in respect of the entire services. A lump-sum price was agreed upon for the total Project pertaining to the work of ‘Commercial or Industrial Construction Service’, he observed that as per Bills of Entry and shipping bills in the contract, it was agreed that the Notice would raise the bill for break-up of the contract price, phasewise and itemwise. The Bills of Entry/shipping bills of the contract did not have the provision for raising bills separately, showing the value for construction of roads, bridges, residential quarters, etc. In view of these facts, prima facie, we are not impressed with the contention of the applicant that the contract has a separate break-up for these services. In view of the rival claims put forward by the applicant and the Revenue, we find that their claim is required to be examined in detail, with reference to the terms of the contract, the books of account maintained by the applicant and the other evidences put forth by both the parties, which could be examined in detail, at the time of disposal of the appeal. However, in view of various facts of this case, enumerated as above, prima facie, at this stage, we are of the opinion that the applicant has not been able to make out a case for total waiver of the pre-deposit. - Partial stay granted.
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