2019 (4) TMI 1008 - HC - Service Tax

Works Contract - Levy of service tax prior to 1.6.2007 - benefit of abatement - HELD THAT - The respondent was providing the services of construction with material and the amount and the material supplied cannot be vivisected. Therefore, the respondent was not liable to pay service tax prior to 1.6.2007 in view of the decision of the Apex Court in COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS 2015 (8) TMI 749 - SUPREME COURT . The Tribunal had rightly set aside the service tax demand upto 30.5.2017 and confirmed the same from 1.6.2007 onwards. No illegality or perversity could be pointed out in the order passed by the Tribunal which may warrant interference by this Court. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Whether the Tribunal can allow a party to retreat from their earlier stand of paying service tax under a certain category after claiming the benefit of abatement?
2. Whether the party can be allowed to approbate and reprobate on the same issue?

Analysis:
1. The appeal was filed by the revenue under Section 35G of the Central Excise Act, 1944 against the order of the Tribunal. The respondent, engaged in construction services, was alleged to have suppressed the value of taxable services and erroneously availed the benefit of abatement, resulting in a shortfall of service tax payment. A show cause notice was issued, and the Tribunal set aside the demand of service tax up to a certain date based on a Supreme Court judgment. The Tribunal also ruled out imposing a penalty on the respondent.

2. The appellant contended that the Tribunal erred in setting aside the service tax demand and argued that the respondent should pay the outstanding amount along with interest and penalty. On the other hand, the respondent's counsel argued that no service tax was payable before a specific date due to a legislative amendment and cited the Supreme Court judgment in Larsen & Toubro Ltd's case to support their stance.

3. The High Court, after hearing both parties, found no merit in the appeal. It noted that the respondent's service provision involved construction with material, making it exempt from service tax before a particular date as per the Larsen & Toubro Ltd's case. The Court emphasized the importance of correctly interpreting tax statutes and upheld the Tribunal's decision to set aside the service tax demand up to a specific date.

4. Ultimately, the Court dismissed the appeal, stating that no substantial question of law arose from the case. It concluded that the Tribunal's decision was legally sound, and no grounds for interference were found. The appeal was therefore dismissed, affirming the Tribunal's ruling on the service tax demand issue.