2018 (2) TMI 836 - AT - Service Tax

Works contract - denial of composition scheme - N/N. 01/2006-ST dated 01.03.2006 - Held that - the appellant has failed to show the evidence that during the impugned period, the whole of the turnover of the appellant pertains to new contracts therefore, benefit of composite scheme is not available to the appellant. As per N/N. 01/2006-ST dated 01.03.2006, the appellant is entitled for the benefit of said notification as the appellant has not availed any Cenvat credit on input/ input services. Therefore, the appellant is liable to pay service tax on 1/3rd of their gross turnover - Admittedly, in this case the appellant has not availed Cenvat credit on input/ input services, therefore, they are entitled for the benefit of N/N. 1/2006-ST. The appellant is liable to pay service tax on 33% of the total contract value received during the impugned period along with interest - penalty not imposable. Appeal allowed in part.

Summary

Issues:
Appeal against service tax demand, composition scheme denial, abatement entitlement, applicability of Notification No. 01/2006-ST, free supplies exclusion from taxable turnover, Cenvat credit availing, liability determination, penalty imposition under Section 78.

Analysis:
The appellant contested an order demanding service tax, interest, and penalties under the Finance Act, 1994, related to their work as a Contractor for SRS Group of Companies. The appellant had opted for a composition scheme during a specific period but was later denied the scheme's benefit due to not opting for it at the start of the assessment year. The issue revolved around the denial of the composition scheme's benefit and the subsequent demand for service tax. The appellant argued for the applicability of a composition scheme and abatement under Notification No. 01/2006-ST.

During the proceedings, the appellant's consultant highlighted that new contracts during the impugned period were a basis for opting the composition scheme. However, the evidence presented did not conclusively prove that the turnover related entirely to new contracts. The Tribunal referred to a previous ruling stating that no service tax is payable on free supplies of material by the service recipient to the appellant, which should not be included in the taxable turnover. Additionally, the Tribunal noted that since the appellant had not availed Cenvat credit on input/services, they were entitled to the benefits of Notification No. 01/2006-ST.

Ultimately, the Tribunal determined the appellant's liability to pay service tax on 33% of the total contract value received during the impugned period, considering the exclusion of free supplies and the entitlement to Notification benefits. The appellant was directed to pay the determined amount along with interest. Notably, no penalty was imposed on the appellant under Section 78 of the Act. The appeal was disposed of based on these findings, providing a clear resolution to the issues raised in the case.