9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (8) TMI 1183 - AT - Service TaxCommercial Industrial Construction Service - Construct work carried out alongwith materials - deduction of VAT - HELD THAT - Though there is mention about the deduction of VAT at source still there is no record available that the entire contract was to be executed alongwith material. We, therefore, are of the opinion that in so far as the confirmation of service tax under Commercial Industrial Service is concerned, the matter needs to be re-verified at the level of Original Authority who shall take into consideration the facts of the case and provisions of law. Penalty u/s 78 of FA - HELD THAT - The penalty under Section 78 of Finance Act, 1994 equal to the amount of service tax of Business Auxiliary Service the same is set aside. Appeal allowed by way of remand.
Issues:
1. Confirmation of service tax under 'Commercial & Industrial Construction Service' and 'Business Auxiliary Service'. 2. Applicability of Section 73(3) of Finance Act 1994 regarding show cause notice issuance. 3. Classification of the activity under 'Works Contract Service'. 4. Imposition of penalty under Section 78 of Finance Act, 1994. Confirmation of Service Tax under 'Commercial & Industrial Construction Service' and 'Business Auxiliary Service': The appellant contested the confirmation of service tax under 'Commercial & Industrial Construction Service' and 'Business Auxiliary Service'. The appellant argued that they had admitted liability for 'Business Auxiliary Service' and paid ?14 lakhs along with interest before the show cause notice was issued, invoking Section 73(3) of the Finance Act 1994. Additionally, the appellant claimed that the activity in question should be classified under 'Works Contract Service', not 'Commercial & Industrial Construction Service'. The appellant referred to a previous Tribunal order and the case law of Gambhir Construction Company to support their position. However, the Revenue argued that there was insufficient evidence to prove that the contract included materials. The Tribunal noted the absence of conclusive evidence regarding the entire contract being executed with materials and decided to remand the matter to the Original Authority for re-verification. The Tribunal directed the Original Authority to consider the facts, legal provisions, the Gambhir Construction Company case, and the Supreme Court judgment in the Larsen & Toubro Ltd. case. Applicability of Section 73(3) of Finance Act 1994: The appellant invoked Section 73(3) of the Finance Act 1994 to argue against the issuance of a show cause notice for 'Business Auxiliary Service', which they had already admitted and paid. The Tribunal partially accepted this argument and set aside the penalty imposed under Section 78 of the Finance Act 1994 equal to the amount of service tax for 'Business Auxiliary Service'. The Tribunal instructed the appellant not to raise the 'Business Auxiliary Service' issue before the Original Authority. Classification of the Activity under 'Works Contract Service': The appellant contended that the activity in question should be classified under 'Works Contract Service' rather than 'Commercial & Industrial Construction Service'. The Tribunal found that while there was mention of VAT deduction at source, there was no concrete evidence to establish that the entire contract involved materials. Therefore, the Tribunal decided to remand the matter to the Original Authority for further verification based on the facts presented and relevant legal precedents. Imposition of Penalty under Section 78 of Finance Act, 1994: The Tribunal set aside the penalty imposed under Section 78 of the Finance Act 1994 equal to the amount of service tax for 'Business Auxiliary Service'. The decision was made in consideration of the appellant's admission and payment of the service tax before the show cause notice was issued. The Tribunal directed the appellant not to raise the 'Business Auxiliary Service' issue during the proceedings before the Original Authority and remanded the matter for further review.
|
