2018 (10) TMI 399 - AT - Service Tax

Classification of services - Construction Services - Construction of Commercial and Industrial Buildings or Civil Structures Service - abatement of 67% under Notification No. 1/2006-ST dated 01.03.2006 - Department came to the view that the services provided by the appellant would fall in the category of Works Contract service which was a new category of service introduced w.e.f. 01.06.2007 - Extended period of Limitation - Composition Scheme. Extended period of limitation - Held that - It was the stand of Revenue all throughout that the different elements of work/ service in a composite contract can be vivisected and tax demanded under the different classifications of service like CICS, ECIS, Construction of Complex, etc. This has been the stand of the Revenue as evident from the ruling of the Hon ble Supreme Court in the case of Larson & Toubro Ltd. 2015 (8) TMI 749 - SUPREME COURT wherein the Hon ble Supreme Court has held that whenever there is a case of composite service there was lack of legislative competence on the part of the Revenue, to vivisect and tax the service component prior to coming on the statute of Section 65(105)(zzzza) of the Finance Act - Accordingly, no service tax could be demanded prior to 01.06.2007, where work /service is classifiable under the Works Contract Service. The show cause notice has been issued on 23.10.2013 which is prior to the decision of Hon ble Supreme Court in the case of Larson & Toubro. Accordingly, there is no deliberate act on the part of the appellant to evade payment of correct service tax, nor there is any suppression, as they were registered with the Service Tax Department, filing ST-3 returns and paying the tax regularly. Classification of service under Work Contract Service instead of CICS - Held that - Following the precedent decision of the Tribunal in the case of ABL Infrastructure Pvt. Ltd. vs. CCE, Nashik 2015 (2) TMI 801 - CESTAT MUMBAI wherein the coordinate Bench of this Tribunal held that in case of changed circumstances, where the activity is eligible to classification under Works Contract Service after 01.06.2007, the appellant should be given an opportunity to pay tax under Rule 3 of Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 - the appellant is entitled to avail the composite scheme for the normal period of limitation from 01.04.2012 to 30.09.2012 and thereafter. Penalty is waived. Appeal allowed - decided in favor of appellant.

Summary

Issues involved:
1. Invocation of extended period of limitation for issuance of show cause notice.
2. Entitlement of the appellant to avail the composition scheme.

Analysis:

Issue 1: Invocation of extended period of limitation for issuance of show cause notice
The appellant, a construction business, was registered with the Service tax department and paying service tax under a specific category. During an audit in 2013, the department contended that the services provided fell under a different category, leading to the issuance of a show cause notice demanding service tax. The appellant argued that the demand for the period from 01.04.2008 to 30.09.2012 was time-barred as they had been paying taxes regularly under a different category. The Tribunal noted that the Revenue had consistently taken the position that different elements of work/service in a composite contract could be taxed under various classifications. However, the Supreme Court had ruled that prior to 01.06.2007, there was no legislative competence to tax composite services under different classifications. As the show cause notice was issued before this Supreme Court decision, the Tribunal held that there was no deliberate evasion of service tax by the appellant. The Tribunal also observed that the appellant was registered, filing returns, and paying taxes regularly, indicating no intent to evade payment.

Issue 2: Entitlement of the appellant to avail the composition scheme
The appellant contended that they were wrongly denied the option to pay service tax at a lower rate under the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. The Tribunal referred to a precedent decision and held that in cases where the activity is eligible for classification under Works Contract Service after a certain date, the appellant should be given the opportunity to pay tax under the composition scheme. Therefore, the Tribunal ruled in favor of the appellant, allowing them to avail the composite scheme for the relevant period. The appellant was directed to verify the tax calculation and pay any discrepancies found. Consequently, the penalty was waived, and the appeal was allowed with the appellant receiving consequential benefits in accordance with the law.

In conclusion, the Tribunal found in favor of the appellant on both issues, ruling that the extended period of limitation for the show cause notice was not valid and allowing the appellant to avail the composition scheme for payment of service tax.