2018 (1) TMI 118 - HC - Service Tax

Classification of services - Works Contract Service - Matter remaining pending on the file of respondent pursuant to the order of remand - Held that - The grounds raised by the petitioner in the earlier round of litigation is identical to the grounds raised herein and one more additional point is with regard to retrospective effect of Finance Act, 2017. This issue has been specifically canvassed in this writ petition - this Court is of the view that the issue, which is covered in the present writ petition viz., the demand of service tax for the period from 01.04.2010 to 30.06.2012, also requires to be re-done. Since the remand, which was ordered by this Court for the period from July 2012 to September, 2013 is yet to attain finality and for the subsequent period, the demand has been dropped by a speaking order, the impugned issue requires re-consideration. Matter is remanded to the respondent for fresh consideration.

Summary

Issues:
Challenge to Order-in-Original classifying services as Works Contract Services, invocation of extended period under proviso to Section 73(1) of the Act, confirmation of service tax demand, imposition of penalties, violation of principles of natural justice in subsequent order, rectification application rejection, retrospective effect of Finance Act, 2017.

Analysis:
The petitioner challenged an Order-in-Original classifying services as Works Contract Services for the period from 01.04.2010 to 30.06.2012. The respondent upheld the invocation of an extended period under proviso to Section 73(1) of the Act, confirmed the service tax demand, imposed penalties, and demanded interest. The petitioner raised concerns over violation of principles of natural justice in a subsequent order for the period from July 2012 to September 2013. The petitioner filed an application for rectification of a mistake, which was rejected, leading to a writ petition. The court emphasized that the power under Section 74 of the Finance Act for rectification cannot be confined to a strict formula and must be based on individual case facts. The court noted that if records produced by the petitioner show a mistake, such as the sale of undivided land share, it constitutes an error apparent on the face of the record. The court allowed the writ petition, quashed the impugned order, and remanded the matter for reconsideration after granting a personal hearing.

In a subsequent development, the respondent issued a show cause notice and scheduled a personal hearing, but due to a transfer of the Commissioner, the orders were pending. The petitioner raised similar grounds in the current litigation, adding a point on the retrospective effect of the Finance Act, 2017. The court noted that the demand for the period from October 2013 was dropped due to a reduction in service tax liability under the new provisos to Rule 2A of the Service Tax (Determination of Value Rules, 2006). The court directed a fresh consideration of the demand for the period from 01.04.2010 to 30.06.2012, aligning with the pending remand for the subsequent period. The court set aside the impugned order, remanded the matter for fresh adjudication, and instructed the respondent to consider the dropped demand order from 01.10.2013 to March 2015. The court emphasized the need for a personal hearing and compliance with the law in passing fresh orders.

This detailed analysis covers the challenges to the Order-in-Original, issues of natural justice, rectification application rejection, and the retrospective effect of the Finance Act, 2017, providing a comprehensive understanding of the judgment's key aspects and legal implications.