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2016 (2) TMI 331 - AT - Service TaxDemand of service tax - Activity of Erection of Tele-communication towers for BSNL - taxability prior to 01/6/2007 - Held that - Though there is mention about making civil work of foundation, as contended by the learned AR documents to show the nature of material involved and supplied in the execution of the contract is not forthcoming. - However, he agreed that the value of the tower and other supplied materials of BSNL is not included in the gross value for VAT assessment, as such, we find certain basic facts, like the actual supply of materials in the execution of contract to establish the composite nature of contract requires verification by the Original Authority. - Matter remanded back.
Issues:
Four appeals by the Revenue and four appeals by the assessees involving similar issues regarding non-payment of service tax for Erection, Commissioning, and Installation Service provided to BSNL. Analysis: 1. Nature of Service Provided: The assessees were engaged in providing Erection of Tele-communication towers for BSNL. The dispute arose regarding the classification of the service provided as either Works Contract Service or Erection, Commissioning, and Installation Service for the period from 01/7/2003 to 20/3/2008. The assessees claimed that they executed Works Contract Service for BSNL, which they argued was not taxable prior to 01/6/2007. The argument was based on the absence of any demand against them under Works Contract Service post 01/6/2007. The Revenue contended that the assessees only provided Erection, Commissioning, and Installation Service without any supply of materials during the service. 2. Abatement under Notification 1/2006-ST: The Revenue argued that the lower Appellate Authority erred in allowing abatement under Notification 1/2006-ST dated 01/3/2006. It was pointed out that the gross value of the contract had not been considered for abatement, specifically highlighting that the value of the tower, supplied free by BSNL, was not included in the gross taxable value. This discrepancy raised concerns about the accurate determination of the taxable value for service tax. 3. Verification of Supply of Materials: The assessees claimed that there was a supply of materials, including towers, primer, and paints by BSNL. However, the Revenue argued that there was a lack of documentary evidence to support this claim. The need for verification of the actual supply of materials was emphasized, especially concerning the nature of materials involved and supplied in the execution of the contract. The absence of clear documentation regarding the supply of materials necessitated a thorough examination by the Original Authority to establish the composite nature of the contract. 4. Legal Precedents and Factual Verification: The judgment referred to legal precedents, including the decision by the Hon'ble Supreme Court in CCE, Kerala vs. Larsen & Toubro Ltd. and a Tribunal's order in CCE, Lucknow vs. P.C. Construction. These legal references highlighted the importance of factual verification based on documentary evidence submitted by the assessees. The need for a detailed examination of the nature of service provided and subsequent quantification of tax liability was emphasized, indicating the significance of factual accuracy in determining the tax implications. 5. Remand for Fresh Consideration: Considering the complexities and discrepancies in the case, the Tribunal decided to remand the matters to the Original Authority for fresh consideration and decision within three months. The assessees were instructed to submit all material evidence supporting their case, emphasizing the importance of comprehensive documentation to facilitate a thorough review. The disposal of appeals and cross objections was contingent upon the Original Authority's reevaluation based on the evidence presented. In conclusion, the judgment highlighted the need for detailed verification, examination of legal precedents, and a comprehensive reassessment of the case by the Original Authority to address the issues raised regarding the classification of services, abatement calculations, and supply of materials in the context of service tax liability.
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