- (1.) The Court: The assessee has preferred this appeal against order dated 18th February, 2016 made by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata Eastern Zonal Bench(CESTAT) in MA 75282/14 in Service Tax Appeal no.303 of 2011 by which the miscellaneous application for restoration of the said appeal was dismissed.
(2.) The facts in brief are that the assessee received mobilization advance towards civil and road construction. The Revenue demanded service tax on such mobilization advance being the sum of Rs.1,08,12,868/-. The appellant contended that part of the mobilization advance received was towards construction of road which is not exigible to service tax. The appellant computed its liability to pay service tax at Rs.85 lakhs and deposited the same. By order in original dated 31st March, 2011 it was adjudicated that the service rendered by the assessee should be treated as a single service based on the essential character or the dominant element of the transaction as per principal of classification laid down under section 65A of the Finance Act, 1994, repelling the contention of the appellant that service of construction of road work was not taxable as per definition of Commercial or Industrial Construction Services falling under the purview of section 65(25b) read with section 65(105)(zzq)of the said Act. By the said order, demand of the said sum of Rs.1,08,12,868/- was confirmed, of which Rs.85 lakhs already paid appropriated against the Government dues. Interest for delayed payment of the said sum of Rs.85 lakhs was also directed against the appellant, penalty of the sum of Rs.1,08,12,868/- imposed and further penalty of Rs.5000/- imposed under section 77 of the said Act.
(3.) Against the said order the appellant had sought to prefer the said appeal before the CESTAT along with an application seeking waiver of predeposit of service tax of Rs.23.12 lakhs and penalty of Rs.1.08 crores.;