2019 (5) TMI 264 - AT - Service Tax

Works contract service - activities mainly related to widening of Highways and electrification along road side - demand raised under Erection, Installation or Commissioning Services - HELD THAT - The Supreme Court in COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS 2015 (8) TMI 749 - SUPREME COURT observed that Works Contract Service was not a taxable service prior to 1 June 2007. Even after 1 June 2007, service tax could not be levied upon the appellant under the Works Contract Service because the Show Cause Notice that was issued to the appellant was under Erection, Commissioning or Installation service. The impugned order that seeks to recover service tax for the service rendered by the appellant under Erection Commissioning or Installation service prior to 1 June 2007 and Works Contract Service after 1 June 2007 cannot, therefore, be sustained - Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Classification of services provided by the appellant under Erection, Commissioning, Installation service or Works Contract Service.
2. Tax liability for services provided before and after 1 June 2007.
3. Validity of demand of service tax and penalty imposed.

Analysis:
1. The appeal challenged the order confirming the demand of service tax and penalty imposed on the appellant for providing Erection, Commissioning, or Installation services to a specific entity. The Show Cause Notice alleged non-payment of appropriate service tax and failure to file service tax returns based on contracts awarded for various electrical works.

2. The adjudicating authority examined the nature of services provided by the appellant from April 1, 2005, to March 31, 2010. It was held that services up to May 31, 2007, fell under Erection, Commissioning, or Installation service, while post-June 1, 2007, they were classified as Works Contract Service due to the composite nature of the contracts.

3. The appellant contended that the service tax could not be levied before June 1, 2007, and even after that date, the demand could not be confirmed under Works Contract Service as the Show Cause Notice mentioned Erection, Commissioning, or Installation service. The Supreme Court precedent and tribunal decisions were cited to support the argument that incorrect classification in the notice renders the demand unsustainable.

4. The Tribunal agreed with the appellant's argument, noting that the services provided by the appellant were correctly classifiable as Works Contract Service both before and after June 1, 2007. As the demand was raised under the wrong category in the Show Cause Notice, the impugned order to recover service tax was set aside, and the appeal was allowed.

This detailed analysis highlights the key legal arguments, findings, and precedents considered in the judgment regarding the classification and tax liability of services provided by the appellant.