2019 (2) TMI 880 - AT - Service Tax

Works Contract services - provision of Thermal Insulation, Sound Insulation, Water Proofing, by using their labour and materials - period 16/06/2005 to 31/12/2006 - N/N. 01/06-ST dated 01/03/2006 - Held that - It is apparent that just because goods are consumed in provision of Service, a contract does not become a Works Contract. There has to be a clear intention of sale which needs to be established before a contract can be terms as works contract. It is seen that the lower authorities have not examined the contract which has been included by the appellant in this appeal memorandum. Since the matter has not been examined by both the authorities in the proper perspective, the impugned order is set aside - matter is remanded to the Original Adjudicating Authority for fresh decision - appeal allowed by way of remand.

Summary

Issues:
Confirmation of demand of Service Tax, interest, and penalty under sections 76 and 78 of the Finance Act, 1994 for the period 16/06/2005 to 30/09/2006.

Analysis:
The appellant, engaged in providing services of erection, commissioning, and installation, contested the demand of Service Tax, arguing that their activities constituted works contract and were not taxable during the relevant period. The appellant highlighted the decision of the Hon'ble Apex Court in the Larsen & Toubro case, asserting that no tax could be levied on works contracts before 01/06/2007. Additionally, the appellant claimed an abatement of 67% under a specific notification for erection, commissioning, and installation services.

The appellate tribunal noted the appellant's argument that their contracts were works contracts and therefore not taxable before 01/06/2007. The tribunal observed that the lower authorities had not properly examined the nature of the contracts to determine if they indeed qualified as works contracts. Citing the decision in Bharat Sanchar Nigam Ltd. vs. Union Of India, the tribunal emphasized the importance of establishing a clear intention of sale for a contract to be considered a works contract. As the lower authorities had not adequately analyzed the contracts provided by the appellant, the tribunal set aside the impugned order and remanded the matter for a fresh decision.

In conclusion, the appellate tribunal found that the lower authorities had not appropriately assessed whether the contracts in question met the criteria to be classified as works contracts. Therefore, the matter was remanded for a fresh decision in light of the discussion provided, emphasizing the necessity of establishing a clear intention of sale for a contract to be considered a works contract.