2018 (10) TMI 1068 - AT - Service Tax

Liability of service tax - construction services - scope of services provided to railways - whether design, supply and erection of warehouse for exclusive use of CONCOR to store imported and export containerized cargo would fall under the scope of exclusion clause of construction work of Railways? - Held that - The learned Commissioner (Appeals) has decided the issue in favour of the respondent on the ground that the Revenue could not establish that the construction undertaken by the respondent were not in relation to Railways - We do not find merit in the said findings of the learned Commissioner (Appeals) inasmuch as the burden to claim exemption from the levy requires to be established by the claimant that his case falls within the four corners of the exemption clause. In the present case, it is the respondent s burden to establish before the authorities below through cogent evidence that the construction undertaken by them relates to Railways. The mater is remanded to the learned Commissioner (Appeals) who shall examine whether the construction undertaken by the respondent fall within the exception clause of the definition of construction service as was in force during the relevant time - appeal allowed by way of remand.

Summary

Issues:
- Appeal against Order-in-Appeal No. 60 dated 26.02.2013 passed by the Commissioner of Central Excise & Service Tax (Appeals), Mumbai.
- Whether the construction services provided by the respondent for exclusive use of CONCOR fall under the exclusion clause of construction work of Railways.

Analysis:
The appeal was filed by the Revenue against an order passed by the Commissioner of Central Excise & Service Tax (Appeals), Mumbai. The case revolved around the respondent providing construction services for the design, supply, and erection of warehouses for the exclusive use of CONCOR. The Revenue alleged that Service Tax was payable on these services and issued a show-cause notice for recovery. The demand was confirmed with interest and penalties under relevant sections of the Finance Act, 1994. The respondent appealed the decision, and the learned Commissioner (Appeals) allowed their appeal, leading to the present appeal by the Revenue.

The Revenue contended that the construction services provided by the respondent were for the erection and commissioning of a warehouse at Dronagiri for storing import and export cargo. They argued that the case against the respondent could only be sustained if it was proven that the services rendered were not in respect of Railways. On the other hand, the respondent argued that the container yard erected at Dronagiri, as per the work order issued by CONCOR, was meant for the storage of import and export cargo and was part of a Railway Shed, falling within the exception clause of taxable services.

After hearing both sides and examining the records, the Tribunal found that the main issue to be determined was whether the design, supply, and erection of the warehouse for the exclusive use of CONCOR fell under the exclusion clause of construction work of Railways. The Tribunal disagreed with the findings of the learned Commissioner (Appeals) and stated that the burden of claiming exemption from the levy rested on the claimant. In this case, it was the respondent's burden to establish through evidence that the construction undertaken by them related to Railways. To ensure justice and allow the respondent an opportunity to establish their case, the matter was remanded to the learned Commissioner (Appeals) for further examination.

Ultimately, the appeal was allowed by way of remand, and the operative portion of the order was pronounced in court.