2009 (5) TMI 67 - AT - Service Tax

Construction service commercial or industrial construction and construction of residential complex applicability of service tax refund of service tax paid prior to 1..2007 after introduction of works contract service held that - Works contract service was brought under tax net on 1.6.2007, after the impugned activities were undertaken by PFL. As rightly argued by the appellants, the Tribunal had held in Diebold Systems case that activity such as erection/commissioning forming part of a works contract could not be taxed under erection/commissioning service prior to 1.6.2007. The contracts basic to the construction of commercial premises/residential premises were indivisible and involved a service element. In view of the ratio of the decision of the Tribunal, prima facie, the impugned demand is not sustainable. However, these two legal arguments were not taken before the Commissioner during the adjudication proceedings. matter remitted for fresh decision. sale of constructed property on its own can not be subject to service tax.

Summary

Issues Involved:
1. Non-payment/short-payment of service tax on various activities.
2. Classification of services under "commercial or industrial construction" and "construction of residential complex".
3. Applicability of service tax on works contracts prior to 1.6.2007.
4. Eligibility for abatement and exemption under specific notifications.
5. Legitimacy of demand for interest and penalties.

Issue-wise Detailed Analysis:

1. Non-payment/short-payment of service tax on various activities:
The appellants, M/s. Prince Foundation Ltd. (PFL), were engaged in construction activities subject to service tax. Following an audit, the authorities found instances of non-payment and short-payment of service tax. The Commissioner demanded Rs.1,45,83,020/- towards service tax, appropriated Rs.1,14,74,367/- already paid, and demanded interest and penalties under Sections 76 and 78 of the Finance Act, 1994.

2. Classification of services under "commercial or industrial construction" and "construction of residential complex":
PFL argued that service tax on "commercial or industrial construction service" was imposed from 10.9.2004 and on "construction of residential complex" from 16.6.2005. They contended that the demand included amounts for services rendered before these dates, which should not be taxed. They also challenged the taxable value adopted by the authorities, suggesting an alternative method using ready mix concrete consumption to determine taxable value post 10.9.2004.

3. Applicability of service tax on works contracts prior to 1.6.2007:
PFL raised a new ground that the projects were implemented under works contracts, which were brought under the tax net only on 1.6.2007. They relied on the Tribunal's decision in Diebold Systems (P) Limited Vs. CST, which held that services forming part of an indivisible works contract could not be taxed separately before 1.6.2007. They argued that as developers using their own labor, they were not liable for service tax as per CBEC Circular F.No.332/35/2006-TRU dated 1.8.2006.

4. Eligibility for abatement and exemption under specific notifications:
PFL challenged the demand for service tax on amounts received towards maintenance, car parking, and other charges, arguing that these were incidental to construction and eligible for abatement. They also claimed that the demand amounted to double taxation and should be limited to 70% considering the period before and after the imposition of service tax. They cited Notification No. 18/2004-ST, which exempted taxable services received before 10.9.2004.

5. Legitimacy of demand for interest and penalties:
PFL contended that the demand for interest was unsustainable as they had bona fidely believed tax was due only on amounts recognized as revenue. They argued that the demand for tax on consideration received in kind (land) was invalid before 19.4.2006, when relevant provisions were introduced. They also challenged penalties under Sections 76 and 78, arguing that they were mutually exclusive and should be waived due to the initial confusion and different interpretations of the provisions.

Conclusion:
The Tribunal found merit in PFL's arguments regarding the applicability of service tax on works contracts and the developer's role as clarified by CBEC. However, as these arguments were raised for the first time before the Tribunal, the matter was remanded to the adjudicating authority for fresh consideration. The impugned order was set aside, and the case was remanded for a fresh decision after affording an opportunity of effective hearing to the appellants. The appeal was allowed by way of remand.