2019 (10) TMI 588 - AT - Service Tax

Non-payment of service tax - Commissioning and Installation services - Maintenance or repair services - Appellant appeared to have taken input/ service credit for providing above services; that the assessee had provided the above services to M/s. Tata Steel without payment of Service Tax though there was a contract for the above services, etc. - extended period of limitation - HELD THAT - The Adjudicating Authority has given a finding on the contentions of the appellant; that the services rendered by the appellant was for consideration and that in case of orders for executing service, the appellant had sub-contracted after making payment for which, the appellant had also taken credit for the Service Tax amount charged. There is also a finding by Ld. Commissioner that the appellant did indeed allot vendor code and ledger to Tata Steel Ltd. by treating the other as its customers on which there is no refutal/rebuttal by the appellant and it is also a part of the record that the services rendered were the results of open bidding/tender where even the appellant amongst others, participated. On being successful, purchased order was placed and the contract came up executed. Extended period of limitation - HELD THAT - It is a matter of record that the Revenue has come to know of the above facts only during the course of checking of records and not from an independent source and therefore, the same cannot be said to have been suppressed with an intention to evade tax and consequently, the demand cannot be raised beyond of the Normal period - there is no specific allegation of suppression, fraud, etc, to justify invoking larger period of limitation. The matter is remanded back to the file of the Adjudicating Authority for working out for liability, if any, for the normal period alone - matter allowed in part and part matter on remand.

Summary

Issues:
1. Liability of Service Tax on "Commissioning and Installation" and "Maintenance or repair services" provided without payment.
2. Interpretation of the contract between the Assessee and the recipient.
3. Validity of the demand raised based on the extended period of limitation.
4. Determination of the liability for the normal period only.

Analysis:

Issue 1: Liability of Service Tax on Services Provided
The appeal was filed against the Order-in-Original for providing services without paying Service Tax. The appellant contended that the services were for self and hence not liable for tax. However, the Adjudicating Authority found the appellant to be an independent service provider, confirming the demand proposed in the Show Cause Notice. The Tribunal noted that the appellant failed to provide documentary evidence to support the claim of self-service. It was established that services were rendered for consideration, sub-contracted, and payments were made, indicating the presence of a service provider and recipient.

Issue 2: Interpretation of the Contract
The appellant argued that there was no service recipient as the service was for self. However, the Revenue established the existence of a service provider and recipient through the contract, vendor code allotment, and participation in open bidding/tender. The Tribunal found that the appellant could not prove the self-service claim, and the Revenue's position was supported by the contractual clauses and payment details.

Issue 3: Validity of Demand Based on Extended Period
The appellant challenged the demand based on the extended period of limitation, citing lack of justification for invoking it. The Tribunal observed that the Revenue discovered the facts during a record check, not from an independent source, indicating no intention to evade tax. As there was no specific allegation of suppression or fraud, the demand beyond the normal period was not justified, and only the liability for the normal period was sustained.

Issue 4: Determination of Liability
The Tribunal remanded the matter to the Adjudicating Authority for determining the liability for the normal period only, as the demand beyond that period was not supported. The decision partly allowed the appeal and partly remanded the case for further assessment based on the findings.

In conclusion, the Tribunal upheld the liability for Service Tax on the services provided, clarified the interpretation of the contract, restricted the demand to the normal period, and remanded the case for further assessment based on the established facts.