2018 (7) TMI 619 - AT - Service Tax

Classification of Services - various types of work including erection, commissioning and installation of plant, machinery and equipments as well as construction of outlets for petrol pumps, commercial or industrial buildings and civil structures - classified under Works Contract Service or under the head Erection, Commissioning and Installation Services? - Held that - The activity will be appropriately classifiable under Works Contracts Service included in the statute w.e.f. 01.06.2007 under the category of Section 65(105)(zzzza) of the Finance Act, 1994 - The apex court in the case of M/s Larsen & Toubro 2015 (8) TMI 749 - SUPREME COURT has categorically held that for the period prior to introduction of WCS, i.e. 01.06.2007, the activity cannot be covered under any other category - there is no justification for demand of service tax prior to 01.06.2007. For the period from 01.06.2007, the appellant will be entitled to pay the service tax under the Works Contract Service - appellant claims that the service tax payable under the WCS has already been paid - matter requires reconsideration. Appeal allowed by way of remand.

Summary

Issues: Classification of services under Works Contracts Service, Time bar for invoking suppression clause, Remand of matter for fresh decision

Classification of services under Works Contracts Service:
The appellant challenged the Order-in-Original dated 29.01.2014, which classified their activities under Erection, Commissioning and Installation Services (ECI). The appellant argued that their activities should be classified under Works Contracts Service (WCS) under Section 65(105)(zzzza) of the Finance Act, 1994. They had already registered under WCS and paid service tax under the WCS Composition Scheme. The appellant relied on the decision of the Hon'ble High Court in the case of M/s Larsen & Toubro, stating that no service tax is leviable for the period prior to 01.06.2007 when WCS was introduced as a separate category. The Tribunal agreed with the appellant, holding that the activity falls under WCS from 01.06.2007 onwards and set aside the demand of service tax prior to that date.

Time bar for invoking suppression clause:
The appellant also challenged the impugned order on the ground of time bar, arguing that the Department had earlier issued a Show Cause Notice in 2007 proposing a different classification. The Tribunal considered this argument in conjunction with the appellant's compliance with registration and payment of service tax under WCS from April 2010. The Tribunal held that the appellant's registration only from April 2010 did not justify invoking the suppression clause under Section 73, as the activity was taxable before that. However, the Tribunal remanded the matter for a fresh decision based on the apex court's judgment in the case of M/s Larsen & Toubro.

Remand of matter for fresh decision:
The Tribunal remanded the matter to the original Adjudicating Authority for a fresh decision in light of the apex court's judgment in the case of M/s Larsen & Toubro. The appellant was granted a fair hearing in the denovo proceedings. The Tribunal emphasized that the appellant would be entitled to pay service tax under the Works Contract Service from 01.06.2007, as claimed by the appellant, who had already paid the service tax under the WCS Composition Scheme after registration in April 2010. The impugned order was set aside, and the appellant's position under WCS was upheld for the relevant period.