2018 (12) TMI 1183 - AT - Service Tax

Site formation and clearance services - Sub-contract - the main contractor has discharged the service tax liability entirely - period from 16.6.2005 to December 2008 - Held that - All the aspects have not been considered - there are certain discrepancies to the quantification which needs to be rectified by the clarifications that has to be produced by the appellants - the matter requires to be remanded to the adjudicating authority - appeal allowed by way of remand.

Summary

Issues involved:
- Non-payment of service tax on services rendered as a sub-contractor
- Wrong availment of abatement under Notification No. 15/2004 and 1/2006
- Non-payment of service tax on supply of excavator and equipment on hire basis
- Delayed payment of service tax
- Imposition of penalties
- Disallowance of abatement
- Applicability of service tax exemption for construction of roads within SEZ

Analysis:
1. Non-payment of service tax on services rendered as a sub-contractor:
The appellant, engaged in site formation services, was found to have not paid service tax on services rendered as a sub-contractor from 16.6.2005 to December 2008. The original authority confirmed the demand and short-payment of service tax, leading to penalties being imposed. The appellant argued that since the main contractor had already paid service tax on the same activities, they should not be liable. The Tribunal found discrepancies in the quantification of the demand and remanded the matter to the adjudicating authority for further examination.

2. Wrong availment of abatement under Notification No. 15/2004 and 1/2006:
The appellant wrongly availed abatement under Notification No. 15/2004 and 1/2006, claiming the activity to be under works contract service, resulting in short-payment of service tax. The appellant admitted the error and argued that it was done in good faith, believing they were eligible for abatement. The Tribunal directed the adjudicating authority to re-examine this issue along with the imposition of penalties.

3. Non-payment of service tax on supply of excavator and equipment on hire basis:
The appellant failed to pay service tax on the supply of excavators and equipment along with operators/drivers on hire basis under the category of supply of tangible goods. This non-payment was noted during the audit of accounts, leading to a show cause notice being issued. The matter was remanded for further clarification and examination by the adjudicating authority.

4. Delay in payment of service tax and imposition of penalties:
The appellant did not deposit the service tax collected from customers and delayed the payment of service tax without paying any interest. Penalties were imposed by the original authority, which the appellant contested. The Tribunal remanded the issue of penalties back to the adjudicating authority for fresh consideration.

5. Applicability of service tax exemption for construction of roads within SEZ:
The appellant argued that the construction of roads within the SEZ area was exempted from service tax as per Notification 17/2005. They contended that the roads constructed were used as common/public roads within the SEZ. The Tribunal directed the adjudicating authority to verify this claim and examine whether the construction activities within the SEZ area were indeed exempt from service tax.

In conclusion, the Tribunal set aside the impugned order and remanded the appeal to the adjudicating authority for a fresh consideration of the issues raised by the appellant regarding service tax liabilities, abatement, penalties, and the applicability of exemptions for construction activities within the SEZ.