2014 (1) TMI 1046 - AT - Service Tax

Classification of service - Manpower Supply Service or Site Formation and Clearance, Excavation and Earth Moving and Demolition Service - Held that - lower authorities have not considered the work-order issued to the appellant, the bills raised by the appellant, the bye-laws of the appellant and the exemption available under Notification No. 17/2005-S.T., dated 7-6-2005 - matter remanded back to the original adjudicating authority for consideration of the matter afresh, taking into account the documentary evidences such as work-order, bills raised by the appellant, bye-laws of the cooperative society, etc. and other documentary evidence, if any, to be submitted by the appellant - Decided in favour of assessee.

Summary

Issues:
Classification of services under 'Manpower Supply Service' for earth filling work with murum and liability to Service Tax.

Analysis:
The appeal and stay application stem from an Order-in-Appeal passed by the Commissioner of Central Excise (Appeals)-II, Mumbai, regarding the classification of services provided by M/s. Prabhalgad Majoor Sahakari Sanstha Ltd. The appellant undertook earth filling work with murum for another entity and received payment for the services rendered. The department contended that the activity should be classified under 'Manpower Supply Service' and be subjected to Service Tax. A show cause notice was issued proposing the classification and demanding Service Tax, interest, and penalties. The lower appellate authority upheld the decision, prompting the appellant to appeal further.

The appellant argued that the activity falls under 'Site Formation and Clearance, Excavation and Earth Moving and Demolition Service' as per the Finance Act, 1994. They highlighted that the services were provided on a cubic meter basis and are exempt under Notification No. 17/2005-S.T. The appellant presented work orders, bills, and cooperative society bye-laws to support their position. They contended that they are not a commercial concern providing services liable to Service Tax under 'Manpower Supply Services'. The appellate tribunal noted that the lower authorities did not adequately consider the evidence presented by the appellant, indicating a strong case for reevaluation.

Consequently, the tribunal remanded the matter back to the original adjudicating authority for a fresh review, emphasizing the need to consider all documentary evidence, including work orders, bills, bye-laws, and any additional submissions by the appellant. The tribunal waived the pre-deposit requirement and instructed that the appellant should be given a hearing before a new adjudication order is passed. Ultimately, the appeal was allowed by way of remand, providing an opportunity for a more thorough examination of the classification and tax liability issues involved.