2019 (2) TMI 481 - AT - Service Tax

Classification of services - amount received as consideration - site formation and clearance, excavation and earth moving and demolition services or not - N/N. 17/2005-ST dated 07.06.2005 - Held that - The said contract is for supply and installation of reinforced cement concrete and various other embankment work which includes supply of material. It is seen from agreement that Respondent has agreed to supply materials like pipes, concreting items like cement, coarse aggregates, fine aggregates, etc. The respondent/assessee and M/s RIL has considered this as a works contract and RIL has deducted an amount as TDS towards VAT on composition scheme as required under APVAT Act, 2005. Since the contract entered by the respondent with RIL indicates it as works contract, the question of charging service tax on the amount received as and fall under site formation services would not arise - appeal dismissed - decided against Revenue.

Summary

Issues: Taxability of services rendered under a contract for construction activities.

Analysis:
1. The appeals were filed by the Revenue against the Orders-in-Appeal regarding the taxability of the amount received by the respondent for construction activities undertaken for a specific project. The lower authorities viewed the services rendered as "site formation and clearance, excavation and earth moving, and demolition services." The respondent argued that the services fell under "construction of transport terminals" and were eligible for exemption under Notification No. 17/2005-ST.

2. The adjudicating authority did not agree with the respondent's contentions and confirmed the demands raised along with penalties. However, the first appellate authority held that the activities undertaken by the respondent indeed fell under the category of "construction of transport terminals" and were exempted by Notification No. 17/2005-ST.

3. The Revenue authorities were aggrieved by the first appellate authority's decision. They contended that the definition of "transport terminal" differed from what was considered by the appellate authority. They referenced a Tribunal judgment in the case of Afcons Infrastructure Ltd to support their argument regarding the taxability of transport terminals.

4. The respondent's counsel argued that the contract with the client was a works contract involving the supply and installation of reinforced cement concrete pipes and embankment work. The counsel highlighted that the respondent had paid VAT to the Government of Andhra Pradesh under the provisions of AP VAT, considering the contract as a works contract. The counsel also referred to a Supreme Court judgment in the case of State of Kerala Vs Larsen & Toubro Ltd, which held that a contract with supply and service components prior to 01.06.2007 was not taxable.

5. Upon reviewing the contract between the respondent and the client, it was found that the agreement involved the supply and installation of reinforced cement concrete and other related works, including the supply of materials. The respondent had agreed to supply materials like pipes, cement, aggregates, etc. The agreement was considered a works contract, and TDS towards VAT was deducted by the client. The Tribunal concluded that since the contract was categorized as a works contract, there was no basis for charging service tax on the amount received, as established in the Larsen & Toubro Ltd case.

6. Consequently, the Tribunal held that the appeals filed by the Revenue lacked merit and ruled in favor of the respondent. The judgment was pronounced in the Open Court on 21.12.2018.