TMI Blog2010 (12) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Nagarjuna Construction Company Ltd. (2010 - TMI - 77165 - ANDHRA PRADESH HIGH COURT) - the appellant directed to pre-deposit an amount of Rs. 2.66 crores. - ST/440/2009 / ST/Stay/260/2009 - STAY ORDER NO. 919/2010 - Dated:- 3-12-2010 - Appellant Rep by: Shri Joseph Prabhakar, Adv. Respondent Rep by: Shri D P Nagendra Kumar, JCDR CORAM: P G Chacko, Member (J) B S V Murthy, Member (T) Per: P G Chacko (Oral): This application seeks waiver of pre-deposit and stay of recovery in respect of Service Tax of over Rs.7.78 crores and penalty of over of Rs.7.8 crores. The demand is for the period from June, 2007 to March, 2008 and the same has been confirmed against the appellant in adjudication of a show-cause notice issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of tax were actually made prior to 01.06.2007 under ongoing works contracts. The show-cause notice relied on the Board's Circular No. 98/1/2008-ST dated 04.01.2008, wherein CBEC had clarified that, where a service provider who paid Service Tax prior to 01.06.2007 for the taxable service, namely, erection, commissioning or installation service, commercial or industrial construction service or construction of complex service, as the case may be, is not entitled to change the classification of the single composite service for the purpose of payment of Service Tax on or after 01.06.2007 and hence, is not eligible to avail the Composition Scheme. In the reply to the show-cause notice, the assessee contested the demand of Service Tax both on me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2%). Apart from the merits of the case, the learned Counsel has also pleaded limitation by pointing out that all material facts were disclosed to the Department by way of letter dated 18.06.2007 to the Superintendent, the Service Tax Returns filed periodically, etc. In answer to a query from the Bench, the learned Counsel admits that the appellant has not pleaded financial hardships in the present application. 3. The learned JCDR, at the outset, submits that the entire demand is within the normal period inasmuch as the Service Tax Return was filed on 24.10.2007 and the show-cause notice was served on the assessee on 23.10.2008. Referring to the merits of the case, the learned JCDR has reiterated the findings of the learned Commissioner. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in such factual situation was not entitled to the benefit. This Circular was upheld by the Hon'ble High Court in the case of Nagarjuna Construction Company Ltd. (supra). We have perused the full text of the Hon'ble High Court's judgment and we find that it operates against the present appellant. However, the plea made by the learned Counsel in his rejoinder merits consideration. In the result, we are inclined to grant the benefit of abatement from taxable value of the works contract service under Notification No. 01/2006-ST, for the present purpose and, consequently, the appellant will have to pre-deposit an amount of Rs. 2.66 crores. In the absence of financial hardships, this deposit should be made within a period of eight weeks. Report ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
