2010 (10) TMI 439 - AT - Service Tax

Management, maintenance or repair service - Work contract - The appellant is providing services of improvement/re-asphalting of the existing roads for National Highway Authority of India, Public Works Department, KIADB, etc - Submits that this argument, that the contracts entered by the appellant would get covered under the heading Works contract was not taken up before the Adjudicating Authority - The lower authorities themselves have recorded that the appellant has paid Karnataka State Sales Tax - Since the issue needs re-consideration by the Adjudicating Authority looking into factual matrix - set aside the impugned order and remand the matter to the Adjudicating Authority.

Summary

Issues:
1. Classification of services under 'Management, maintenance or repair' vs. 'Works contract'
2. Admissibility of new arguments on appeal not raised before lower authority
3. Consideration of Board's letter dated 24-5-2010 in the appeal process

Analysis:
1. The appeal challenged an Order-in-original regarding the classification of services provided by the appellant as improvement/re-asphalting of roads. The Adjudicating Authority classified the services under 'Management, maintenance or repair' service, making them liable for service tax. The appellant contended that the services should be classified as 'Works contract' instead, a point not raised before the lower authority but included in the appeal. The appellant's representative highlighted that the issue required examination by the Adjudicating Authority to determine the correct classification.

2. The appellant's Chartered Accountant acknowledged that the argument regarding 'Works contract' was not presented before the lower authority but was raised in the appeal. The Adjudicating Authority had not considered this aspect. The respondent's representative argued that new issues not raised before the lower authority, including the Board's letter dated 24-5-2010, should not be admissible on appeal. The Tribunal noted the need for the Adjudicating Authority to re-examine the classification issue in light of the factual matrix, emphasizing the importance of following principles of natural justice.

3. During the proceedings, the appellant's representative referred to the annexures in the show-cause notice, highlighting that the appellant had paid Karnataka State Sales Tax as per the records. The Tribunal observed that the issue required a detailed reconsideration by the Adjudicating Authority to arrive at a conclusion. Without expressing any opinion on the merits of the case, the Tribunal set aside the impugned order and remanded the matter for a fresh determination, keeping all issues open for consideration. The appeal was allowed on the grounds of remand, emphasizing the need for a thorough examination of the classification issue.