CESTAT, AHMEDABAD BENCH
Commissioner of Service Tax, Ahmedabad
ORDER NO. S/2117/WZB/AHD./2012
APPLICATION NO. ST/S/793 OF 2012
APPEAL NO. ST/329 OF 2012
SEPTEMBER 21, 2012
1. The appellants are engaged in construction of petroleum outlets for M/s Indian Oil Corporation Ltd. and on the ground that the appellant has not paid the Service Tax under the category of Commercial or Industrial Construction during the year September 2004 to October 2005, proceedings were initiated which culminated into demand of Service Tax of Rs. 2,31,317/- with interest and penalty under Sections 77 and 78 of Finance Act, 1994.
2. Ld.Consultant appearing on behalf of the appellant submitted that the lower authorities did not take note of the fact that in several projects, the demand included the amount received for services rendered prior to 10.09.2004, the date of introduction of service into the tax net. He annexed the details of such dates not included. Further, he also submits that the contract has to be treated as Works Contract and therefore there is no liability for the period prior to 01.06.2007. He also submits that the financial condition of the appellant is very bad and the appellant is not in a position to make any pre-deposit.
3. Ld.A.R. would submit that the lower authorities have considered the amount relating to the period prior to 01.09.2004 and draws my attention to the annexure of the Show Cause Notice, wherein the allowance has been given and the amount has been deducted in respect of the bills raised prior to 10.09.2004. He also submits that the claim that the service falls under the Works Contract, was not made before both the lower authorities and on verification, it was found that even before Tribunal, in the appeal memorandum, there was such claim made.
4. I have considered the submissions made by both sides. The claim for treatment of the service under the Works Contract has never been made and it is too late for making such claim at this stage. As regards the claim that demand included the amount received prior to 10.09.2004, ld.Consultant could not contradict the submissions made by ld.A.R. that the deduction has already been allowed for the amount received prior to 10.09.2004. As regards the financial difficulty, I have gone through the Income Tax return for the year 2010-2011 and I find that acceding to the Income Tax return, the appellant had invested in equity shares amounting to more than Rs. 4.7 lakhs. In view of the fact that the demand of Service Tax is of Rs. 2.31 lakhs, it cannot be said that the appellant is in such a financial position that he cannot pay this amount. I am sure that nobody can make a claim that the investment in equity shares should be kept intact while the Service Tax liability should be deferred by exercising the discretion of the Tribunal.
5. In view of the above, the appellant has failed to make out a prima facie case in his favour on merit or on the ground of financial difficulty.
6. Accordingly, the appellant is directed to deposit the demand of Service Tax confirmed i.e. Rs. 1,31,317/- (Rupees Two lakhs, Thirty One Thousands, Three Hundred and Seventeen only) within a period of eight weeks from today and report compliance on 23.11.2012. Subject to such compliance being reported, the application for waiver of pre-deposit of balance amount involved is allowed and recovery thereof stayed till the disposal of appeal.