2019 (1) TMI 382 - AT - Service Tax

Repair and maintenance service undertaken for RINL - sub-contract - non-payment of service tax as sub-contractor - Held that - The main claim of the appellant is that original contractor has discharged the tax liability - the ratio of the judgement of the Tribunal in the case of Power Mech Projects Ltd., 2016 (9) TMI 844 - CESTAT HYDERABAD would apply if appellant is able to evidence that the main contractors has discharged the tax liability under the category of Management, Maintenance and Repair services post 16.06.2005 - Since, the evidences are not forth coming, we remit the matter back to the Adjudicating Authority to reconsider this part of the issue - matter on remand. Non-payment of service tax - erection and commissioning service - GTA services - Held that - The Adjudicating Authority will also look into this particular portion of the service tax when remand matter is taken up as indicated herein above. Valuation - non-inclusion of free issue materials supplied by RINL - Held that - The Adjudicating Authority will also look into this particular portion of the service tax when remand matter is taken up as indicated herein above - Matter on remand. Time Limitation - Held that - The issue left open to the Adjudicating Authority to reconsider it when is considering the portion remitted back to him. Appeal allowed by way of remand.

Summary

Issues:
Non-payment of service tax on Repair and maintenance services, non-payment of service tax on services as a sub-contractor, non-payment of service tax on GTA services, non-inclusion of free issue materials supplied by RINL for short payment of service tax.

Analysis:
The appeal was against the Order-in-Original which demanded service tax from the appellant for services provided during 2004-2009. The appellant argued that they did not discharge the tax liability as they believed the main contractors were responsible. The Adjudicating Authority confirmed the demands along with interest and penalties. The appellant contested the show cause notice on merits and limitation.

The appellant submitted specific demands for service tax on various services. The Departmental Representative argued that the services provided were not related to the repair of immovable property, making them taxable. The Adjudicating Authority detailed the services rendered by the appellant, emphasizing that the demand was correctly confirmed.

The Tribunal analyzed the issue comprehensively, focusing on the definition of maintenance or repair services pre and post 15-06-2005. It was observed that repair and maintenance of immovable property became taxable only post 15-06-2005. The Tribunal examined the work orders and concluded that the services provided by the appellant fell under maintenance or repair services during the period in question.

Regarding the service tax liability as a subcontractor, the Tribunal referred to previous judgments and remitted the matter back to the Adjudicating Authority for further consideration based on evidence. The Tribunal also directed the Adjudicating Authority to review the tax liability worked out by including service tax in the taxable turnover.

The demands raised for short payment of certain services were upheld, and penalties were set aside invoking the provisions of the Finance Act, 1994. The issue of limitation was left open for reconsideration by the Adjudicating Authority. The appeal was disposed of accordingly.