ORDER
G.A. Brahma Deva, Member (J)
1. ST/Cod/2/2004 This is an application filed by the party to condone the delay in filing the appeal. It was submitted that there was a delay of 13 days in filing the appeal.
2. The Counsel appearing for the appellants submitted that the impugned order dated 11-6-2003 had been received by him only on 13-6-2003. The appeal was required to be filed on or before 12-9-2003. However, the party, situated in Delhi, has sent it by courier on 10-9-2003. In view of the fact that since the address was not proper, the same had been returned to the party. Subsequently, the appeal papers were submitted to the correct address. It was submitted that the delay was caused due to some confusion about the address-and accordingly, he requested to condone the delay.
2. Heard Shri L. Narasimha Murthy, learned JDR for Revenue….
3. On going through the facts and circumstances and considering the difficulties explained by the Counsel for not filing the appeal within the stipulated time, we are of the view that this is a fit case to condone the delay. Accordingly, the delay in filing the appeal is condoned.
ST/st/15/2003:
4. This stay application is filed by the party for waiver of pre-deposit of duty amounting to Rs. 77,07,034/- and penalty of Rs. 1,00,000/- and stay of the recovery proceedings.
5. The counsel appearing for the appellants submitted that Work Contract as such is not liable to service tax. The works undertaken by the party in this case are, Residual Process Engineering, Detailed Engineering, Procurement, Inspection, Supply, Transportation, Fabrication, Construction/erection/installation, Testing, Pre-commissioning, Commissioning and performance guarantee test runs including project and construction management. He said that in the similar circumstances, the Delhi Bench, in the case of Daelim Industrial Co. Ltd. v. Commissioner of Central Excise, Vadodara , has held that Work Contract is not liable to service tax as Consultancy.
6. Heard Shri L. Narasimha Murthy, learned JDR for Revenue.
7. On careful consideration of the submissions made by both sides and taking into consideration the case-law referred to by the Counsel, we are of the view that a strong prima facie case is in favour of the party. Furthermore, it was submitted that out of the disputed amount, a sum of Rs. 15,00,000/- has already been deposited. In view of this position, the stay application is allowed unconditionally.