2018 (6) TMI 799 - AT - Service Tax

Classification of services - construction of residential houses and other related works - case of Revenue is that the activities provided by the appellant should be taxed under construction of complex service upto 31.05.2007 and under works contract service w.e.f. 1.6.2007 - Penalty - Held that - The fact is not under dispute that the work order issued by the Rajasthan Housing Board for construction of Residential houses by the appellant is a composite contract, which involves both supply of materials and for construction of the houses. Thus, irrespective of the classification of the services, service tax will be leviable under Works Contract Service only w.e.f. 1.6.2007 - categorization of the service under construction of complex service in the adjudication order cannot be sustained. Time Limitation - Period from 1.6.2007 to 30.09.2010 - Held that - There were confusion during the relevant time with regard to proper classification of the service. Since the Department has not specifically brought out any evidence showing the classification motive of the appellant, in defrauding the government revenue, the extended period of limitation cannot be invoked for confirmation of the adjudged demand and the demand should be confined to the normal period. Penalty - Held that - Since the issue involves interpretation of statutory provisions, the penalty cannot be levied against the appellant. The matter is remanded to the Original Authority for quantification of the service tax demand, which should be payable by the appellant within normal period of limitation - appeal allowed by way of remand.

Summary

Issues:
1. Classification of services under "construction of complex service" and "works contract service"
2. Time limitation for issuing show cause notice
3. Leviability of service tax on construction of residential houses

Analysis:

Issue 1: Classification of services under "construction of complex service" and "works contract service"
The case involved a dispute regarding the classification of services provided by the appellant for construction of residential houses. The Service Tax Department initially categorized the activities under "construction of complex service" up to a certain period and under "works contract service" thereafter. The appellant argued that the construction of residential houses for the Rajasthan Housing Board constituted a composite contract involving both material supply and construction execution. The appellant relied on a Supreme Court judgment to support their claim that service tax demand could not be confirmed under "construction of complex service" for the earlier period. The Tribunal agreed with the appellant, stating that irrespective of the classification, service tax would be leviable under Works Contract Service only from a certain date based on the Supreme Court judgment, thereby rejecting the categorization under "construction of complex service."

Issue 2: Time limitation for issuing show cause notice
Regarding the period from a specific date to another, the show cause notice was issued beyond the normal period of limitation. The appellant contended that the proceedings were time-barred as the notice was issued after the prescribed time limit. The Tribunal, considering the confusion during that time regarding the proper classification of services and the absence of evidence indicating intent to evade payment, held that the extended period of limitation could not be invoked for confirming the demand. Citing previous Tribunal decisions, the Tribunal ruled in favor of the appellant, setting aside the demand raised beyond the normal period of limitation.

Issue 3: Leviability of service tax on construction of residential houses
The Tribunal acknowledged the confusion surrounding the leviability of service tax on residential units constructed separately. Relying on a previous Tribunal order, the Tribunal held that service tax levy would not apply in cases where each compound had multiple buildings with no more than 12 residential units. Due to the lack of evidence indicating fraudulent intent on the part of the appellant, the Tribunal concluded that the demand should be confined to the normal period, and the penalty should not be levied against the appellant due to the interpretation of statutory provisions involved in the issue.

In conclusion, the Tribunal set aside the impugned order regarding the time limitation issue, remanding the matter for quantification of service tax demand within the normal period. The appeal was disposed of without imposing a penalty on the appellant.