2013 (12) TMI 1427 - AT - Service Tax

Abatement of 67% - Works contract - Held that - There was no scope for classification before the adjudicating authority when there was no issue in that regard. If Revenue s fresh ground of classification is entertained that shall cause prejudice to the interest of justice when the issue framed against the respondent at adjudication stage was not on that score. Therefore, it is not possible to make a fresh adjudication on a fresh ground at second appeal stage - Decided against Revenue.

Summary

Issues:
1. Admissibility of abatement in determining tax element.
2. Scope of contracts and classification of taxable service.
3. Fresh ground of classification raised by Revenue at the second appeal stage.

Analysis:
1. The adjudicating authority initially disallowed abatement of 67% of the contract value to determine the tax element, stating that the work performed was finishing and completion work. The Commissioner (Appeals) disagreed, finding that abatement was permissible when goods were incorporated into the work. He allowed abatement on most of the demand but denied it on a specific amount related to finishing and completion work. The Revenue argued for a different classification of the taxable service, but the Tribunal held that since the issue of classification was not raised earlier, it could not be entertained at the second appeal stage. The Tribunal dismissed the Revenue's appeal, upholding the Commissioner's decision on abatement.

2. The dispute primarily revolved around the admissibility of abatement in determining the tax element. The adjudicating authority and the Commissioner (Appeals) examined the scope of the contracts in question and whether abatement was permissible based on the work performed. The Tribunal found that the Commissioner's decision allowing abatement on most of the demand was appropriate after a thorough examination of the facts. The Tribunal concluded that there was no legal flaw in the Commissioner's decision and dismissed the Revenue's appeal.

3. The Tribunal emphasized that introducing a fresh ground of classification at the second appeal stage, when it was not raised earlier, would be prejudicial to the interest of justice. As the issue of classification was not part of the original adjudication, the Tribunal rejected the Revenue's request to consider a new classification of the taxable service. The Tribunal affirmed the Commissioner's decision regarding abatement and upheld the dismissal of the Revenue's appeal.