2018 (9) TMI 186 - AT - Service Tax

Scope of SCN - Construction Services - whether the demand confirmed under Works Contract Service and under Site Formation and Clearance Excavation and Earthmoving and Demolition Service is sustainable despite that the said demand was not raised vide the impugned Show Cause Notice? - Held that - irrespective that the concept of Works Contract Service got introduced during the impugned period of demand but demand was not raised under the said service. Law has been settled that when no demand was made from the appellant under the category of Works Contract in the Show Cause Notice the Adjudicating Authority could not have confirmed the demand under said category. The Adjudication Order was held to have travelled beyond the scope of Show Cause Notice and the demand was held as being not sustainable under Works Contract which otherwise was raised in the Show Cause Notice under another category. The Adjudication Order was held to have travelled beyond the scope of Show Cause Notice and the demand was held as being not sustainable under Works Contract which otherwise was raised in the Show Cause Notice under another category - appeal allowed - decided in favor of appellant.

Issues:
1. Tax liability for Architect Consulting Engineering Services and Real Estate Agent and Residential Construction of Complex Services.
2. Non-filing of ST-3 return and non-payment of service tax for the years 2004-05 and 2005-06.
3. Reduction of demand by the Adjudicating Authority and imposition of penalties.
4. Taxability of construction services under Commercial or Industrial Construction Services and Works Contract Service.
5. Challenge to the demand confirmed under Works Contract Service and Site Formation services.

Analysis:
1. The appellant, a service tax registration holder, provided Architect Consulting Engineering Services and later included Real Estate Agent and Residential Construction of Complex Services. The Department observed non-filing of ST-3 returns and non-payment of service tax for 2004-05 and 2005-06, resulting in a demand of &8377; 96,66,995/-. The Adjudicating Authority reduced the demand to &8377; 8,49,040/- with penalties and interest. The appellant challenged this decision.

2. The appellant argued that the construction projects were not taxable under Commercial or Industrial Construction Services as they were for non-profit purposes or had less than 12 residential units. The Department contended that the demand was justified, especially for Works Contract Services introduced after the impugned period. The Adjudicating Authority upheld taxability for certain projects based on the number of residential units.

3. The Tribunal noted that the demand for several construction works was dropped due to non-taxable nature or lack of evidence. However, tax liability was confirmed for specific projects based on the number of residential units. The demand under Works Contract Service and Site Formation services was challenged for not being raised in the Show Cause Notice.

4. The Tribunal held that confirming demands under Works Contract Service and Site Formation services, not mentioned in the Show Cause Notice, was beyond the scope of adjudication. Citing legal precedents, the Tribunal set aside the confirmed demands, stating they were wrongly imposed. Consequently, interest and penalties were deemed insignificant. The Appeal was allowed, and the Order was set aside.

This detailed analysis highlights the tax liability issues, reduction of demand, taxability of construction services, and the challenge to demands not mentioned in the Show Cause Notice, resulting in the Tribunal setting aside the confirmed demands.

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