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Judgment
The appellant is in appeal against along with application of stay. After hearing both the sides at length we find that appeal itself can be disposed of
at this stage. Therefore, stay application as well as appeal are taken up together for disposal with consent of both the sides.
Facts of the case are that appellant is engaged in the activity of construction of residential complex i.e. LIG, HIG and MIG flats I houses. The
contention of the appellant is that these are independent houses. Therefore, they are not covered under the services under category of construction of
residential complex. Therefore, they are not liable for service tax but show cause notice was issued to the appellant and service tax was confirmed
along with interest and various penalties was also imposed on them. The said order was challenged by the appellant before the Ld. Commissioner (A)
who directed the appellant to make entire amount of pre deposit of service tax and for entertaining of appeal which appellant failed to do so. Against
the said order appellant is before me.
Considered the submissions made by both the sides before me.
As this Tribunal in the case of Macro Marvel Projects Ltd. Vs. CCE Chennai-2008 (12) STR 603 (Tri-Chennai) which was affirmed by the
Hon'b/e Apex Court reported in 2012 (25) STR J154 (SC) they have observed that as these are independent houses therefore they are not covered
under section of residential complex. The appellant has made out a case of waiver of pre deposit. Therefore, we waive the requirement of entire
amount of service tax and penalty. We further find that as the Commissioner (A) has asked them to make a pre deposit. The said order is set aside.
We further find as impugned order is not discussed on merits of the case. Therefore, it would be in the interest of the justice that appeal filed before
the Ld. Commissioner (A) be heard on merits without insisting any pre deposit from the appellant. In these terms, the stay order passed by the Ld.
Commissioner (A) is set aside and is remanded back to the Ld. Commissioner (A) to hear the matter on merits without insisting any pre deposit.
With these terms stay application as well as appeal are disposed of.
(Dictated and pronounced in the open court.)