2014 (9) TMI 150 - AT - Service Tax

Eligibility to claim benefit of abatement 67% - completion and finishing services in relation to building or civil structure - Notification No. 15/2004-ST dated 10.09.2004 and Notification No. 1/2006-ST dated 01.03.2006 - exemption Notification No. 12/2003-ST dated 20.06.2003 - exemption towards value of material - Held that - It is seen that during the adjudication or in their appeal before CESTAT the appellants have not contended that they are eligible for the benefit of exemption under Notifications No. 15/2004-ST and 1/2006-ST. Thus the adjudication authority was right in denying the benefit of the said two notifications to the appellants. The classification of service is to be determined as per the definitions of various taxable services prevalent during the relevant period and merely because the classification changes with the introduction of a taxable service under which an existing service gets more specifically covered in no way means that the said service was not necessarily taxable during the period prior thereto. Regarding applicability of Notification No. 12/2003, as discussed earlier the benefit of exemption Notification No. 12/2003-ST cannot be granted merely on the basis of overall estimation/approximations put forth and without any documentary proof specifically indicating the value of goods and materials sold in respect of the individual recipients of service as per the contracts entered into by the appellants with each of them. They have failed to produce such documentary proof so far. The appellants insist that they have such documentary proof and would be able to produce the same. In such a situation, it is only fair that the case is remanded to the adjudicating authority to enable the appellants to do so. - Decided partly in favor of assessee. Extended period of limitation - Held that - the fact that the appellants did not inform the department that they were claiming the said exemption notifications in respect of completion and finishing services coupled with the fact that they so brazenly and blatantly indulged in claiming the benefit under the said notifications in spite of the fact that the said notifications were so expressly, conspicuously and unambiguously not applicable for the said services establishes suppression of facts on their part unquestionably at least on the basis of preponderance of probability. - Decided against the assessee.

Issues Involved:
1. Eligibility for Notification No. 15/2004-ST and Notification No. 1/2006-ST.
2. Eligibility for Notification No. 12/2003-ST.
3. Suppression of facts with the intention to evade service tax.
4. Applicability of service tax on composite contracts before 01.06.2007.

Detailed Analysis:

1. Eligibility for Notification No. 15/2004-ST and Notification No. 1/2006-ST:
The appellants claimed the benefit of 67% abatement under Notification No. 15/2004-ST and Notification No. 1/2006-ST for their completion and finishing services. However, the adjudicating authority denied this benefit, stating that these notifications expressly excluded completion and finishing services from such abatement. The appellants did not contest this denial during the adjudication or appeal, thereby affirming the adjudicating authority's decision.

2. Eligibility for Notification No. 12/2003-ST:
The appellants claimed the benefit of Notification No. 12/2003-ST, which exempts the value of goods and materials sold by the service provider to the service recipient from service tax, provided there is documentary proof indicating the value of the goods and materials. The adjudicating authority found that the appellants did not provide such proof and thus denied the benefit. The appellants argued that they were not required to show the value of goods and materials in the invoices, which the tribunal acknowledged, but emphasized that documentary proof is mandatory. The tribunal noted that the appellants failed to provide specific documentary proof for the goods and materials sold in respect of individual service recipients. Consequently, the case was remanded to the adjudicating authority to allow the appellants to produce the necessary documentation.

3. Suppression of Facts with the Intention to Evade Service Tax:
The appellants were found to have deliberately claimed the benefit of Notification No. 15/2004-ST and Notification No. 1/2006-ST, which were not applicable to their services. They also failed to disclose that the services for which they claimed the exemption were completion and finishing services. This conduct was deemed to constitute suppression of facts with the intention to evade service tax. The tribunal upheld the finding of suppression of facts, noting that the appellants' actions were brazen and blatant, and there was no ambiguity or confusion regarding the inadmissibility of the claimed benefits.

4. Applicability of Service Tax on Composite Contracts Before 01.06.2007:
The appellants contended that their composite contracts were not liable to service tax before 01.06.2007, when works contract service was made taxable. However, the tribunal referred to the judgment of the Delhi High Court in the case of G.D. Builders, which held that service tax is payable on the service element of composite contracts and that the service element should be bifurcated and taxed. The tribunal rejected the appellants' contention, stating that the classification of service is determined by the definitions of taxable services during the relevant period, and the introduction of a more specific taxable service does not negate the taxability of the service prior to its introduction.

Conclusion:
The tribunal set aside the impugned order and remanded the case for de novo adjudication, allowing the appellants to present documentary evidence required for the benefit of Notification No. 12/2003-ST. The adjudicating authority was instructed to reconsider the appellants' submissions and re-determine the demand of service tax and penalties based on the admissibility of the benefit under Notification No. 12/2003-ST, as discussed in the judgment.

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