2008 (12) TMI 147 - AT - Service Tax

Service Tax on Erection commissioning or installation service - the services relating to heating ventilation or air-conditioning has been specifically brought into the service tax net with effect from 16-6-2005. The amendments made effective from 16-6-2005 are also not in the nature of clarification - Further in similar circumstances the Tribunal in the case of Firepro Systems (P.) Ltd. has held that the service tax on Fire Proofing service will be effective only from 16-6-2005 - the applicant has made out a prima facie case for waiver of the dues as per the impugned order Stay Granted

Summary

Issues:
Interpretation of service tax on activities related to heating, ventilation, or air-conditioning for the period from 1-7-2003 to 15-6-2005.

Analysis:
The case involved a dispute regarding the classification of services provided by the applicant as falling under the category of "commissioning or installation service" for the purpose of service tax. The Commissioner had confirmed a demand for service tax amounting to Rs. 2,68,88,674 for the period from 1-7-2003 to 15-6-2005 and imposed penalties. The applicant argued that the services related to heating, ventilation, or air-conditioning were specifically covered under the service tax net only from 16-6-2005 onwards due to changes in the definition of services. The applicant contended that the demand for service tax for the earlier period was incorrect and relied on a decision by the Tribunal in a similar case. The applicant also referred to a circular issued by CBEC clarifying the applicability of the new services and expanded services from 16-6-2005. The Department, on the other hand, supported the findings of the Commissioner and argued that the activities of the applicant fell within the definition of commissioning or installation services from 1-7-2003. The Department highlighted the applicant's failure to provide relevant details despite requests from the department.

The Tribunal carefully considered the submissions from both sides and examined the Commissioner's order. The Commissioner's order emphasized that the applicant's work involved supplying necessary parts and providing services related to installation, erection, and commissioning of HVAC systems. The Commissioner held that the applicant was liable to pay service tax on commissioning, installation, and erection charges obtained from clients during the period from 1-7-2003 to 15-6-2005. However, the Tribunal, prima facie, found that services related to heating, ventilation, or air-conditioning were specifically brought into the service tax net only from 16-6-2005 and that the amendments made were not merely clarifications. The Tribunal also referred to a previous case where it was held that the service tax on certain services would be effective only from 16-6-2005. Considering these factors, the Tribunal held that the applicant had made out a prima facie case for waiver of the dues as per the impugned order. Consequently, the Tribunal ordered for the waiver of pre-deposit and stayed the recovery of dues until the disposal of the appeal.