2019 (7) TMI 151 - AT - Service Tax

Classification services - site formation and clearance service or otherwise? - appellant had supplied tractors excavator including operator and the charges were based on hourly basis - HELD THAT - It is an admitted fact that the appellant has supplied machinery tractors and JCB, etc., to their principal for which they have been paid on hourly rate including operator cost, excluding fuel. We find that such services are squarely covered under the scope of supply of tangible goods service as defined under Section (65)(105) (zzzzj), we also find from the copy of work order issued by the principal/ Enercon to the appellant, dated 12th May 2006, wherein for construction or for erection of WEG for wind power project, in the price category it is provided that the appellant shall paid at hourly rate for various machinery like JCB, tractor, tanker, etc. Thus, evidently the service category involved is SOTG, and not site formation and clearance service. We are aware that SOTG service came into effect from 16th March, 2008, that is after the period of dispute. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether service tax was rightly demanded from the appellant under the category of "site formation and clearance service."

Analysis:
The issue in this appeal revolved around the classification of services provided by the appellant. The Ld. Commissioner (Appeal) held that the appellant's work of excavation and site preparation for construction of a tower fell under the category of Site Formation & Clearance Service as per Section 65(105)(zzzza) of the Finance Act, 1994. The appellant argued that they supplied tangible goods like tractors and excavators with operators on an hourly basis, which should be classified under the supply of tangible goods service. However, the Ld. Commissioner rejected this argument, emphasizing that the nature of the service provided was site preparation for construction, regardless of how the charges were calculated. The Ld. Commissioner also dismissed the appellant's claim for benefit under Notification No. 17/2005 ST, stating that the site preparation was specific to tower foundation construction, not covered by the notification.

Upon reviewing the appeal records, the Tribunal found that the appellant indeed supplied machinery like tractors and JCB to their principal on an hourly rate basis, including operator costs. The work order issued by the principal specified payment at an hourly rate for various machinery for construction of a wind power project. The Tribunal concluded that these services fell under the scope of "supply of tangible goods service" as defined under Section 65(105)(zzzzj) and not under site formation and clearance service, as determined by the lower court. Additionally, the Tribunal noted that the service of supply of tangible goods came into effect after the dispute period, further supporting their classification decision.

In light of the above analysis, the Tribunal set aside the impugned order and allowed the appeal, granting the appellant consequential benefits. The judgment clarified the classification of services provided by the appellant and emphasized the importance of correctly identifying the nature of services for tax purposes, ultimately ruling in favor of the appellant based on the classification of services under the relevant provisions of the Finance Act, 1994.