2017 (4) TMI 557 - AT - Service Tax

Classification of service - Transportation activity or Site formation and clearance, excavation and earthmoving and demolition - Appellant submits that show cause notice is vague and based on assumptions and presumptions without looking into the actual facts - work order of loading, unloading and transportation of coal at Open Cast mines - Held that - We find that whatever may be the activity of the work contractor M/s. NEPL, it is the nature of services of the Appellant which has to be looked into for imposition of service tax. On overall perusal of the SCN and the impugned order, we find that nowhere the activity of the Appellant and its agreement with M/s. NEPL was considered. Since in this case the Appellant has undertaken only the transportation activity and the services were rendered to M/s. NEPL which is a private Ltd. concern, we hold that the services are of transportation on which the Appellant is not liable to service tax being taxable under reverse charge mechanism. Thus, the Appellant is not liable to any service tax under the category of Site formation and clearance, excavation and earthmoving and demolition services. - Decided in favor of assessee.

Summary

Issues involved:
Service Tax demand on transportation services classified under "Site formation and clearance, excavation and earthmoving and demolition" service; Applicability of penalties under Sections 76 and 77 of the Finance Act, 1994; Liability of service tax under reverse charge mechanism; Interpretation of agreements between parties; Applicability of circular dated 23-8-2007 on sub-contractors; Nature of services provided by the Appellant; Jurisdiction of Appellate Tribunal CESTAT MUMBAI.

Detailed Analysis:

1. Service Tax Demand and Penalties:
The appeal challenged an Order-in-Original confirming a Service Tax demand of ?55,89,035 along with penalties under Sections 76 and 77 of the Finance Act, 1994, and an equivalent penalty under Section 78. The activity was classified under "Site formation and clearance, excavation and earthmoving and demolition" service. The Appellant contested the vagueness of the show cause notice and argued that the activities were transportation services, not site formation services. The adjudicating authority imposed penalties based on the classification of services.

2. Nature of Services and Agreements:
The Appellant's counsel argued that the transportation activity undertaken was not liable for service tax as it fell under transportation services, not site formation services. They emphasized that the main activity as per the agreement was transportation. The agreements between parties outlined the nature of services provided and the liability for service tax. The Appellant's role was limited to transportation, while other activities were the responsibility of the contracting party.

3. Reverse Charge Mechanism and Liability:
The Appellant contended that as an individual service provider, they were not liable for service tax, especially since the transportation services were provided to a private Ltd. concern, which had deposited service tax under the reverse charge mechanism. The Tribunal analyzed the agreements and held that the services provided were indeed transportation services, exempting the Appellant from service tax liability under the category of site formation services.

4. Applicability of Circular and Precedents:
The Appellant raised concerns about the circular dated 23-8-2007 imposing service tax liability on sub-contractors, arguing that it was not applicable in their case as the service period was prior to its introduction. The Appellant also differentiated their case from a precedent cited by the Revenue, emphasizing the nature of services provided in each instance.

5. Judgment and Relief Granted:
After considering submissions from both sides, the Tribunal concluded that the Appellant's services were transportation services and not liable for service tax under the category of site formation services. The impugned order was set aside, and the appeal was allowed with consequential reliefs. The Tribunal's decision was based on the specific nature of services provided by the Appellant and the agreements governing the transactions.

6. Conclusion:
The judgment by the Appellate Tribunal CESTAT MUMBAI clarified the classification of services provided by the Appellant, emphasizing the distinction between transportation services and site formation services. The detailed analysis of agreements, nature of services, liability under reverse charge mechanism, and applicability of penalties and circulars contributed to the Tribunal's decision to grant relief to the Appellant based on the specific facts and circumstances of the case.

This comprehensive analysis covers the issues involved in the legal judgment, providing a detailed overview of the arguments presented, the Tribunal's findings, and the ultimate decision rendered in the case.