2017 (5) TMI 397 - AT - Service Tax

Construction services - demand - Held that - as per the N/N. 16/2005 dt. 07/06/2015, as amended by N/N. 26/2007 dated 22.05.2007 and N/N. 34/2012 dated 20.06.2012 exemption was provided in relation to construction services in relation to port and other ports, w.e.f. 16/06/2015. Hence the activity relating to the port, no service tax is leviable. Maintenance repair service - classification of services - Held that - Since there appears to be doubt in the classification per se of the service provided, we set aside the demand on this score and remand the matter to the lower authority for denovo adjudication - matter on remand. Site formation, excavation, clearance - benefit of N/N. 17/2005-ST dated 07.06.2005 - Held that - he said service is indeed exemption as per the exemption Notification No.17/2005-ST dt. 07/06/2005. In that notification, exemption was granted for site formation and clearance, excavation and earthmoving and demolition and such other similar activities. Thus, we set aside the impugned order in this regard and allow the claim of the appellant. Works contract - abatement - N/N. 01/2006-ST dated 01.03.2006 - Held that - It appears that the appellant has made the plea for the first time and not done so earlier before the lower authorities. When it is so, we set aside the impugned order on this issue and remand the matter to the lower authority to decide the issue de novo. Matter also remanded to fix the demand under management, Maintenance or Repair service , Commercial or Industrial Construction services. Appeal allowed - decided partly in favor of appellant and part matter on remand.

Summary

Issues:
Appeal against Order-in-Original, service tax demands for various periods, classification of services, exemption notifications, abatement eligibility, non-consideration of appellant's pleas.

Analysis:
1. 2005-08 Period:
- Demand of Rs. 53,98,338/- for construction services disputed.
- Appellant argued services related to port exempt under Notification No.16/2005.
- Tribunal found demand not sustainable under the said notification, exempting port-related construction services.

2. 2005-08 Period (Maintenance & Repair Service):
- Demand of Rs. 3,339/- for maintenance and repair services.
- Appellant contended services classify under commercial or industrial construction, seeking exemption.
- Tribunal set aside demand, remanding for reevaluation due to classification doubts.

3. 2005-08 Period (Site Formation, Excavation, Clearance):
- Demand of Rs. 68,648/- for site-related services.
- Appellant claimed exemption under Notification No.17/2005.
- Tribunal confirmed exemption under said notification, allowing the claim.

4. 2008-09 Period:
- Service tax liability of Rs. 36,95,078/- confirmed.
- Appellant sought abatement of 67% under Notification No.01/2006.
- Tribunal remanded the matter for fresh adjudication due to the first-time plea.

5. 2009-10 & 2010-11 Periods:
- Demands of Rs. 78,98,629/-, Rs. 16,03,657/-, Rs. 17,72,575/-, and Rs. 62,00,097/- made.
- Appellant argued services exempt under specific notifications.
- Tribunal noted lower authority's failure to consider appellant's contentions.
- All demands remanded for reevaluation, allowing appellant to present their case.

Conclusion:
The Tribunal partly allowed the appeal on merit and partly remanded the case for fresh adjudication. Appellant's pleas for exemption and reclassification were considered, leading to the setting aside of certain demands and the remand of others for further assessment. The Tribunal emphasized providing the appellant with a fair opportunity to present their case during the reevaluation process.