2018 (11) TMI 755 - AT - Service Tax

Cleaning services - cleaning services with respect to the toilets constructed and maintained by them for Singareni Collieries Limited - scope of service - liability of service tax - Held that - Cleaning services were clearly provided within the commercial premises of Singareni Collieries Limited and hence they are not excluded from the definition of cleaning services and are liable to pay service tax - However, the calculation of the amount of the service tax to be paid by the appellant is not clear as neither the Order-in-Original nor the Order-in-Appeal indicate whether the amount of service tax has been calculated on the total constructed value or on the amount paid towards cleaning of the toilets on a monthly basis. This is a fit case to be remanded back to the original authority for the sole purpose of re-calculation of the correct tax on the amounts received by appellant from Singareni Collieries Limited for cleaning activity - appeal allowed by way of remand.

Summary

Issues involved:
1. Revision of Order-in-Revision after passing Order-in-Appeal.
2. Liability to pay service tax on cleaning services provided within commercial premises.

Issue 1: Revision of Order-in-Revision after passing Order-in-Appeal
The appellant filed two appeals against Order-in-Original (Revision) No. 25/2009-ST and Order-in-Appeal No. 35/2008(H-II)S.T. In Appeal No. ST/521/2009, the Commissioner revised the lower authority's order, which was already appealed against and an Order-in-Appeal was passed. The appellant argued that once the Order-in-Appeal is passed, the lower authority's order merges with it, and the Commissioner lacks the power to revise it. Citing a case law, the appellant contended that the doctrine of merger applies in such cases. The Tribunal found the Order-in-Revision to be without legal authority as the Order-in-Appeal had already been passed against the impugned Order-in-Original. Consequently, Appeal No. ST/521/2009 was allowed, and the impugned order was set aside solely based on this ground.

Issue 2: Liability to pay service tax on cleaning services provided within commercial premises
In Appeal No. ST/531/2008, the appellant provided cleaning services for public toilets constructed and maintained for a company. The appellant contested the service tax demand specifically related to the cleaning services for these toilets. The appellant argued that the toilets were public and hence not liable for service tax. However, the Commissioner argued that the toilets were within the commercial premises of the company and were used by both staff and the general public. The Tribunal determined that the cleaning services were provided within the commercial premises, making them liable for service tax. However, the calculation of the service tax amount was unclear in the original orders. The Tribunal remanded the case back to the original authority to recalculate the correct tax amount based on the payments received for cleaning services from the company.

In conclusion, the Tribunal allowed Appeal No. ST/531/2008 by remanding the case for recalculating the service tax amount for cleaning services provided within commercial premises. Appeal No. ST/521/2008 was allowed, setting aside the impugned order due to the lack of legal authority for the revision after passing the Order-in-Appeal.