2015 (11) TMI 166 - AT - Service Tax

Commercial or Industrial Construction service - Work contracts - Appellant neither furnished documents nor responded to the show cause notice or the summons issued - Held that - Work contracts was not a taxable service prior to 1.6.2007, as Commercial or Industrial Construction Service defined, Section 65 (25b) of the Finance Act, 1994. At least since 1989, the law is clearly settled vide the judgment in Builders Association of India vs. UOI - 1989 (3) TMI 356 - SUPREME COURT OF INDIA that in works contract, since there is a fusion to two distinctly taxable aspects, namely rendition of service and deemed transfer of goods involved in execution of the works; service tax is leviable only on those aspects amounting to rendition of service and excluding deemed sale of goods. Whether the appellant had in fact provided the works contract service is of course a question of fact. It is so asserted in the appeal for the first time but has not been so asserted or pleaded before the adjudicating authority. Since the appellant has wholly failed to cooperate in the adjudication proceeding by non-cooperation and thereby disabled the ld. Commissioner to properly discharge his statutory functions, to pass a well considered order of assessment and since such non-cooperation of the appellant had resulted in substantial waste of public money involved in the primary adjudication proceeding as well as the clearly avoidable expenditure of appellate resources, we consider it appropriate to afford an opportunity to the appellant to submit its facts and figures and legal defences before the adjudicating authority in de novo proceeding, but on costs of ₹ 5 lakhs, which shall be remitted to the credit of the Union Government, within 30 days - Impugned order is set aside - Decided in favour of assessee.

Summary

Issues:
1. Confirmation of cumulative tax demand by the adjudication order.
2. Non-cooperation of the appellant during the investigation and adjudication process.
3. Basis of arriving at taxable value on best judgment basis.
4. Appellant's defense and contentions regarding works contract service.
5. Justification for remitting the matter to the adjudicating authority.
6. Terms and conditions for the de novo adjudication process.

Analysis:
1. The appeal challenged the adjudication order confirming a cumulative tax demand of Rs. 30,94,91,352 pursuant to four show cause notices covering the block period. The proceedings were initiated based on the appellant's alleged provision of Commercial or Industrial Construction service, failure to file returns, and non-remittance of service tax due.

2. The appellant's non-cooperation during the investigation and adjudication process was highlighted, as they failed to furnish documents, respond to notices, or participate in the proceedings effectively. This lack of cooperation led the Revenue to rely on information obtained from Income Tax Authorities to assess the turnover and consideration received for the taxable service.

3. The taxable value for the subsequent period was determined on a best judgment basis by assuming a 100% increase in turnover for each year after 2007-08. The appellant's singular response during the proceedings was deemed insufficient to address the concerns raised in the adjudication order.

4. The appellant contended that works contract service was not taxable before a certain date based on legal judgments. They argued against the rationality of the 100% increase assumed in the impugned order and sought benefits under composition schemes or exclusion of the value of goods supplied.

5. The Tribunal found the appellant's total non-cooperation and lack of substantive defense deprecable. Despite setting aside the impugned order, the Tribunal remitted the matter to the adjudicating authority due to the appellant's obstructive conduct, imposing costs as a deterrent against future non-cooperation.

6. The terms for the de novo adjudication process required the appellant to submit detailed information on works executed, legal defenses, and relevant documents within a specified timeframe. The jurisdictional Commissioner was directed to consider the submissions and pass a fresh order within three months, with the appellant mandated to deposit costs of Rs. 5 lakhs to the Union Government.

This comprehensive analysis reflects the key issues addressed in the judgment, including the basis for tax demand confirmation, non-cooperation by the appellant, rationale for remitting the matter, and the procedural requirements for the fresh adjudication process.