2010 (12) TMI 66 - AT - Service Tax

Management, maintenance or repair of immovable property - activity of maintenance of roads, construction of drainage, upgradation of sidewalks, asphalting of roads etc - Held that - there could be a construction activity and also there could be supply of materials. In the entire orders-in-original, the Adjudicating Authority has addressed himself only to the issue of inclusion of the appellants activity under the category of maintenance, management or repairs, services but has not considered the factual position as regards the construction activity and supplies aspect. - matter remitted back to adjudicating authority in view of circular dated 23/2/2009.

Summary

Issues:
1. Whether the appellant's activity falls under the category of management, maintenance, or repair services for service tax liability?
2. Whether the Adjudicating Authority correctly imposed penalties and interest on the appellant?
3. Whether the contracts entered by the appellant with various authorities are of a composite nature?

Analysis:
1. The appellant, a Govt. undertaking engaged in construction works for the Govt., contested show-cause notices claiming their services were for upgradation and construction of public property, not management of immovable property. The Adjudicating Authority disagreed, holding the appellant liable for service tax on the contracts executed. The appellant argued that the activity should be classified under commercial or industrial services due to specific exclusions for road activities. The Tribunal noted the need for a re-consideration, citing a CBEC circular distinguishing maintenance/repair from construction work. The matter was remanded for fresh consideration, emphasizing the distinction between construction and maintenance activities.

2. The Adjudicating Authority confirmed the demand for service tax, penalties under Sections 76 & 77 but not under Section 78. The appellant challenged the penalties imposed. The Tribunal did not express an opinion on the penalties' merits but set aside the orders, remanding the issue for re-consideration. The matter of penalties was left open for the Adjudicating Authority to decide afresh, ensuring principles of natural justice were followed.

3. The appellant contended that their contracts with authorities were composite in nature, not solely for maintenance, management, or repair of immovable properties. The Tribunal acknowledged this argument, emphasizing the need for a thorough review of the contracts to determine the nature of the activities performed. The matter was remanded for the Adjudicating Authority to re-assess the contracts and reach a conclusion based on all relevant aspects, including the composite nature of the work undertaken by the appellant.