2017 (10) TMI 1188 - AT - Service Tax

Levy of service tax - construction of drive way at the petrol pump constructed by them - Held that - construction of drive way in the petrol pump is not taxable in view of the C.B.E.C. clarification dated 27/07/2005, wherein clarified that the benefit of drive way in commercial complex is to be allowed if the activity is recognized separately in the contract - the appellant is not liable to pay service tax for the construction of drive way. Quantification of service tax - there has been error in calculation of the tax and the figures supplied by IOCL - Held that - for the limited purpose of calculation of the gross amount taxable and the tax payable, the matter remanded to the adjudicating authority who shall hear the appellant and after perusing the evidence led before him and obtaining any information required as fit, will pass the reasoned order in accordance with law. Appeal allowed in part and part matter on remand.

Summary

Issues:
1. Quantification of service tax by the Commissioner (Appeals)
2. Liability of the appellant to pay service tax on the construction of a drive way at the petrol pump

Issue 1: Quantification of Service Tax
The case involved a dispute over the correct quantification of service tax by the Commissioner (Appeals). The appellant contested a show cause notice demanding service tax for a specific period, arguing that the figures supplied by IOCL were incorrect. The Commissioner (Appeals) acknowledged errors in the tax calculation, noting discrepancies in the amounts mentioned against various Purchase Orders (P.O.s). The appellant also argued that they had not received the service tax component from the service recipient, invoking Section 67(2) of the Act for determining the taxable value. The Commissioner (Appeals) agreed with the appellant's contentions, directing a reverse calculation as per Section 67(2) of the Act.

Issue 2: Liability for Service Tax on Drive Way Construction
Regarding the liability of the appellant to pay service tax on the construction of a drive way at the petrol pump, the Commissioner (Appeals) held that the drive way was not a public road but a part of the commercial complex, making it taxable. However, the Tribunal referred to a C.B.E.C. clarification stating that the benefit of a drive way in a commercial complex should be allowed if recognized separately in the contract. The Tribunal found details in the Work Order supporting the construction of the drive way, leading to the conclusion that the appellant was not liable to pay service tax for the drive way construction. The matter of gross amount taxable and the tax payable was remanded to the adjudicating authority for a reasoned order in accordance with law, with modifications to penalties under Section 78. The appellant was directed to appear before the adjudicating authority within a specified period for further proceedings.