2015 (1) TMI 90 - AT - Service Tax

Demand of service tax on various services rendered by the appellants to Neyveli Lignite Corporation Onus of classifying the services rendered - The main contention of all the learned advocates is that the Revenue failed to determine the amount of tax with the nature of activities and the classification of service. - Held that - Assessees had obtained service tax registration for the services rendered by them to NLC. The demand of tax is for the period prior to registration. Hence, it is the duty of the Assessees to explain the activities in respect of the amounts in question received by them from NLC as they had entered into contract with the NLC for rendering services of various nature. In our opinion, while the Revenue placed the statement of NLC showing payment details received by the Assessees from NLC in respect of the various services rendered by them and this fact was not disputed by the Assessees and therefore, it would be sufficient for discharging the onus by the Revenue. So, it is shifted on the Assessee to explain the amounts in question in respect of the rendering of services. In our considered view, none of the case laws relied by the learned advocates would be applicable to the facts and circumstances of the instant case. - Revenue had already discharged the onus lies on them to establish the services rendered by the Assessee in the premises of NLC. It has also placed consideration received by the Assessee in respect of rendering of services to NLC. These facts were disputed by the Assessees. It is well settled that the facts admitted with the supporting documents need not to be proved. The only grievance of the Assessees are that the Revenue had not given the break-up of the amounts with reference to each service. We are of the view that when the Revenue has given all these facts, then the onus lies with the Assessee to explain the service rendered by them in respect of the amount received from NLC. Assessee should be given opportunity to defend their case before the adjudicating authority - Matter remanded back - Decided partly in favour of assesse.

Issues Involved:
1. Classification of services rendered by the Assessees.
2. Demand of service tax for the period prior to registration.
3. Adequacy and specificity of the Show Cause Notices (SCNs).
4. Onus of proof regarding the classification and amount of taxable services.
5. Invocation of extended period for demand and penal provisions.

Issue-Wise Analysis:

1. Classification of Services Rendered by the Assessees:
The core issue revolves around the classification of services rendered by the Assessees to M/s. Neyveli Lignite Corporation Ltd. (NLC). The Assessees were engaged in activities such as water supply, drainage, electrical works, horticulture, and construction. The Revenue categorized these services under "Management, Maintenance or Repair Services," "Commercial or Industrial Construction Service," "Erection, Commissioning and Installation Service," and "Man Power Recruitment or Supply Agency Service." The Assessees contended that the Department failed to classify the services accurately and did not specify the individual activities in the SCNs.

2. Demand of Service Tax for the Period Prior to Registration:
The Assessees registered under the service tax law in 2004, 2005, and 2006. The demand pertains to the period from 2003-04 to 2007-08, with one case extending to 2008-09. The Revenue argued that the Assessees were liable for service tax for the period prior to their registration, as the services were taxable from specific dates (e.g., 01/07/2003 for MMR, 07/07/1997 for MRSAS, etc.). The Assessees disputed this, claiming that the SCNs did not provide clarity on the classification and the corresponding taxable value.

3. Adequacy and Specificity of the Show Cause Notices (SCNs):
The SCNs issued by the Department were criticized for lacking specificity regarding the classification of services and the exact activities subject to tax. The Commissioner (Appeals) set aside the adjudication orders, noting that the SCNs did not detail the categories under which the Assessees were liable for service tax. The Tribunal emphasized that the SCNs must clearly identify the activities and the corresponding legal provisions under which they are taxable.

4. Onus of Proof Regarding the Classification and Amount of Taxable Services:
The Assessees argued that the onus of proof for classification lies with the Department. The Tribunal held that the Revenue had discharged its burden by providing the statement of payments from NLC, which was not disputed by the Assessees. Consequently, the onus shifted to the Assessees to explain the amounts received from NLC and the nature of services rendered. The Tribunal cited the case of Ranjeev Alloys Ltd. to support this view, emphasizing that once the Revenue provides prima facie evidence, the burden shifts to the Assessees.

5. Invocation of Extended Period for Demand and Penal Provisions:
The Department invoked the extended period for demand, alleging suppression of facts by the Assessees. The Assessees countered that the Department was aware of their activities since 2002 and had held meetings with NLC officials and contractors. The Tribunal noted that the Assessees had partly paid the tax, which was appropriated by the adjudicating authority. The Tribunal directed the adjudicating authority to provide the NLC statement to the Assessees and allow them to explain the amounts received and the services rendered.

Conclusion:
The Tribunal remanded the cases to the adjudicating authority, directing it to provide the NLC statement to the Assessees and allow them to defend their case. The adjudicating authority was instructed to pass necessary orders after giving the Assessees a proper opportunity for a hearing. All issues were kept open for decision by the adjudicating authority. The appeals were allowed by remand, and all stay applications and cross-objections were disposed of.

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