2019 (4) TMI 733 - AT - Service Tax

Non-speaking order - Valuation - inclusion of raw materials/ parts consumed in providing the impugned services in assessable value - whether the impugned maintenance and services are with respect to immovable property or with respect to goods and equipment ? - principles of natural justice - Held that - Both the issues have been decided in a non-speaking and very cryptic manner. No justifiable arguments have been given to decide the taxability on both the issues. It has been summarily held that the assessee has provided the services of maintenance of preservation of power plants, LNG Terminal which are goods and equipment without any discussion or examination whether the maintenance or repair services have been provided with respect to the immovable property or with respect to the goods and equipment . Whereas we apparently find that the impugned services to Power Plant/ LNG terminal are with respect to immovable property but we refrain to pass any order in this respect as the party had initially voluntarily deposited the service tax amount after owning their liability towards this service and even raised revised taxable invoices to their customers. Hence, the issue may be examined in totality and a well reasoned order be passed after providing opportunity to the appellants to justify their claim that the said services were in respect of immovable property or not. The matter is remanded back to the Original Adjudicating Authority with the directions that the case may be decided afresh after affording a reasonable opportunity to the appellant to produce all the documents in support of their arguments and decide the matter - appeal allowed by way of remand.

Issues Involved:
1. Taxability of the service provided by the appellant before and after 16/06/2005.
2. Deduction of the value of raw materials/parts consumed in providing the impugned services.
3. Applicability of extended period for demanding service tax.
4. Imposition of penalties under different provisions of the Finance Act, 1994.

Issue-Wise Detailed Analysis:

1. Taxability of the Service Provided by the Appellant Before and After 16/06/2005:
The appellant argued that their service of 'Preservation and Maintenance' of DPC's properties, which included power plant phases I & II, LNG Terminal, Jetty, Naphtha, Single Point Mooring, and housing complex, was related to immovable property and not to "goods and equipment." They contended that prior to the amendment on 16/06/2005, Section 65(64) of the Finance Act, 1994 only covered maintenance or repair services of goods or equipment, excluding immovable properties. The appellant cited several precedents, including CCE, Ahmedabad vs. GE-Noova Pigone and Saikala Power Private Limited vs. Additional DGFT, New Delhi, to support their claim that power plants and similar installations are immovable properties. The Tribunal found that the adjudicating authority's decision was non-speaking and cryptic, lacking a detailed examination of whether the services were related to immovable property or goods and equipment. The Tribunal noted that the services appeared to be related to immovable property but refrained from passing a final order due to the appellant's initial voluntary payment of service tax.

2. Deduction of the Value of Raw Materials/Parts Consumed in Providing the Impugned Services:
The appellant claimed deductions for the cost of parts and raw materials consumed during the provision of maintenance and repair services under Section 67 of the Finance Act and Notification No 12/2003-ST dated 20/06/2003. They argued that in typical maintenance contracts, the sale of materials is not separately envisaged, and the sale gets effectuated during the service provision. The appellant provided VAT returns and a Chartered Accountant's Certificate to substantiate their claim. The Tribunal found that the adjudicating authority had improperly dismissed the appellant's claim based on the lack of bifurcation in the revised invoices. The Tribunal held that the value of raw materials/parts should be abated under Notification 12/2003-ST if verifiable documentary proof was provided, even if not separately shown in the invoices.

3. Applicability of Extended Period for Demanding Service Tax:
The appellant argued that the extended period for demanding service tax under Section 73 of the Finance Act, 1994, was not justified as they had paid service tax from 31/12/2004 after being intimated by the Department. They claimed a genuine belief that their activity was not taxable. The Tribunal directed the Original Adjudicating Authority to reconsider the applicability of the extended period by considering the appellant's contentions.

4. Imposition of Penalties Under Different Provisions of the Finance Act, 1994:
The appellant contended that penalties under Sections 77 and 78 of the Finance Act, 1994, should not be imposed as they had not recovered the service tax amount from the customer and had a genuine belief that their service was not taxable. The Tribunal directed the Original Adjudicating Authority to reconsider the imposition of penalties by considering the appellant's contentions.

Conclusion and Directions:
The Tribunal remanded the matter back to the Original Adjudicating Authority with directions to decide the case afresh after providing the appellant with a reasonable opportunity to produce all supporting documents. The issues of taxability, deduction of raw material value, applicability of the extended period, and imposition of penalties were to be reconsidered in light of the Tribunal's observations. The Tribunal also directed the appellant to approach the Adjudicating Authority promptly for early adjudication.

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