2013 (4) TMI 47 - AT - Service Tax

Classification of Services - Availed abatement of 67% - erection, commissioning and installation agency and the industrial construction service. - taxability prior to 1-5-06 - - Held that - Apparently there was a mistake in the assessment and therefore in the absence of any revision of assessment by the Revenue, it may not be fair to deny the appellant to claim classification under either of the heads at this stage. On this ground also, there is a need to examine the claims made by the appellants that what they had erected was structures and not plant, machinery or equipment. Since the issue as to whether the appellant had erected only structures or major portion of the work done was structures is required to be examined by screening of the contracts entered into, relevant records and the evidences that may be produced by the appellants - The matter is remanded to the original adjudicating authority for fresh consideration after giving reasonable opportunity to the appellants to present their case. It is made clear that - Appeal is allowed by way of remand in favour of Assessee.

Issues:
1. Appellant availed abatement without including value of materials
2. Classification of services provided by the appellant
3. Inclusion of value of free supplies for levy of service tax
4. Claim of services being correctly classifiable as works contract
5. Denial of abatement and demand for differential service tax
6. Assessment classification discrepancy

Analysis:
1. The issue arose from the appellant availing abatement without including the value of materials supplied by customs free of cost. The impugned order confirmed the demand for differential service tax and imposed penalties under various sections of the Finance Act, 1994. The appellant contended that they were engaged in erection of structures only, not plant or machinery, and thus not liable to pay service tax for the period before 1-5-06.

2. The classification of services provided by the appellant was disputed. The appellant argued that they undertook erection of structures only, not plant or equipment, and should be classified under "Erection, Commissioning or Installation" services. The Revenue contended that the value of free supplies should be included for levy of service tax and that the services were correctly classifiable as works contract from 1-6-07.

3. The question of including the value of free supplies for the levy of service tax was raised. The appellant cited decisions supporting their claim that the value of goods supplied free of cost should not be included. The Revenue argued that such value should be included and that the decisions cited by the appellant were not applicable.

4. The claim of services being correctly classifiable as works contract was made by the appellant. The Revenue disputed this claim, stating that the appellant had not treated the services as works contract previously and had not paid VAT accordingly. The appellant's classification under works contract was challenged by the Revenue.

5. The denial of abatement and demand for differential service tax was a crucial issue. The Tribunal found it unfair to reject the appellant's claim that they were not liable to pay service tax on structures. The matter was remanded to the original adjudicating authority for fresh consideration based on the evidence presented by the appellant.

6. A discrepancy in the assessment classification was noted. The appellant had paid service tax under "Erection, Commissioning or Installation" services in challans but classified it under "Commercial or Industrial Construction" services in the ST-3 return. The Tribunal deemed it unfair to deny the appellant the right to claim classification under either head without a revision of assessment by the Revenue. The issue of what the appellant had erected, whether structures or machinery, needed further examination.

In conclusion, the judgment addressed various issues related to the appellant's service tax liability, classification of services, inclusion of free supplies in tax calculation, and the fairness of denying abatement. The matter was remanded for a fresh examination of the evidence and classification of services provided by the appellant.

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