2014 (5) TMI 106 - HC - Service Tax

Demand of service tax - switching over from Commercial or Industrial Construction Service and Construction of complex service to Works contract service for those projects which were already under execution as on 1.6.20 - Partial payment of service tax - benefit of payment of service tax at concessional rate of 2% w.e.f. 1.6.2007 (4% from 28.2.2008) under Work Contract (Composition scheme of payment of Service Tax) Rules, 2007 - Tribunal remanded matter back to Commissioner - Held that - when the Tribunal has merely remanded the proceedings for fresh consideration for the reasons noted, we are not inclined to interfere. At this stage, we are not making any conclusive observations that if the proposal of the department to tax the assessee on the basis that the assessee provided commercial or industrial construction services or complex services fails, benefit of composite tax could or could not be denied. The same would depend on very minute reading of the show cause notice and in one of the cases, the addendum issued by the department. We may recall that the Commissioner in his order dated 29.10.10, raised both the issues. First issue pertains to appropriate classification of the service provided by the assessee. Second issue pertains to the availability of the benefit of paying at concessional rate after 1.6.2007 under the Works Contract (Composition Scheme for payment of Service Tax) Rules, 2007 on the ongoing projects of the assessee. The latter question framed has thus a direct bearing on the issue of availability of composition of tax. However, as noted above, the Tribunal having remanded the proceedings for fresh consideration, we do not see any question of law arising. All contentions, including that looking to the contents of the show cause notice it is not open to deny such benefits, are kept open to be raised before the Commissioner - Decided against assessee.

Issues Involved:
1. Classification of services provided by the appellant.
2. Eligibility for the composition scheme under the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007.
3. Demand for service tax, interest, and penalties.
4. Tribunal's decision to remand the case for fresh consideration.

Detailed Analysis:

1. Classification of Services Provided by the Appellant:
The appellant, engaged in construction-related activities, initially categorized their services under "Commercial or Industrial Construction Service" or "Construction of Complex Service" before 1.6.2007. Post 1.6.2007, with the introduction of "Works Contract Service," the appellant switched classifications and availed of a composition scheme. The Commissioner of Service Tax issued a show cause notice alleging that the appellant had short-paid service tax by switching categories and availing of benefits under the wrong classification. The Tribunal later held that the appellant was entitled to revise the classification to "Works Contract Services" after 1.6.2007, as clarified by a CBEC circular dated 24.8.2010.

2. Eligibility for the Composition Scheme:
The Commissioner contended that the appellant's action of switching to "Works Contract Service" for ongoing projects as of 1.6.2007, where service tax payments had already begun, was not in accordance with the rules. The composition scheme was not available for contracts where service tax payments had commenced before 1.6.2007. The Tribunal agreed, citing the Supreme Court's decision in Nagarjuna Construction Company Ltd v. GOI, which stated that ongoing contracts as of 1.6.2007 were not eligible for the composition scheme if service tax had already been paid under the previous classifications.

3. Demand for Service Tax, Interest, and Penalties:
The Commissioner confirmed the demand for service tax, interest, and penalties based on the appellant's alleged improper classification and ineligibility for the composition scheme. The show cause notice demanded recovery of Rs. 4,22,05,286 in service tax, along with interest and penalties under sections 76 and 78 of the Finance Act, 1994. The Tribunal, however, found the demand based on a new and different ground than what was initially stated in the show cause notice, and thus, the addendum changing the basis of the demand was not applicable.

4. Tribunal's Decision to Remand the Case:
The Tribunal reversed the Commissioner's findings on the classification issue but upheld the ineligibility for the composition scheme for ongoing contracts. The Tribunal remanded the case for de novo consideration, instructing the adjudicating authority to re-examine the issues, including the impact of free supply of goods in a works contract and its inclusion in the assessable value, in light of judicial pronouncements and CBEC circulars. The remand was also to consider the Supreme Court's decision in Nagarjuna Construction and the CBEC circular dated 24.8.2010, which were not available at the time of the original adjudication.

Conclusion:
The High Court dismissed the appeals, agreeing with the Tribunal's decision to remand the case for fresh consideration. The Court noted that all contentions, including the issue of whether the department could deny benefits based on the show cause notice, were open to be raised before the Commissioner. The High Court emphasized that the Tribunal's remand was appropriate given the need for a detailed examination of the issues raised.

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