2020 (2) TMI 294 - AT - Service Tax

Classification of services - construction service along with materials (composite contract) - classifiable under works contract service or commercial or industrial construction service ? - extended period of limitation - HELD THAT - The service rendered by the appellant is taxable only and the category of works contract service in view of the law laid down by Hon ble Supreme Court in Larsen Toubro 2015 (8) TMI 749 - SUPREME COURT . Also, the work relating to road construction, even in the premises of NTPC, which may be termed as private road is exempt service as per the definition of works contract service which specifically exempts road service . There is no distinction made out by the legislature with respect to public road and private road. Further, admittedly, the appellant have paid the service tax under the works contract composition scheme along with the interest. The appellant is entitled to pay tax under the works contract composition scheme and once they have discharged the tax liability there is no further liability on them. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Classification of service as 'works contract service' or 'commercial or industrial construction service'.
2. Invocation of extended period of limitation.

Classification Issue Analysis:
The appeal addressed the classification of the appellant's service as either 'works contract service' or 'commercial or industrial construction service' due to the nature of the rendered construction service along with materials. The initial order-in-original determined the service tax payable under 'commercial and industrial construction service,' disallowing the composition scheme claimed by the appellant. The Commissioner (Appeals) referred to the Supreme Court ruling in Larsen & Toubro case and earlier Tribunal orders to conclude that the service should be classified under 'works contract service' for the relevant period after June 1, 2007. The High Court upheld this classification decision.

Extended Period of Limitation Issue Analysis:
Regarding the invocation of the extended period of limitation, the Tribunal noted that the Revenue had issued multiple show cause notices on the same facts and circumstances, leading to a dispute on the applicability of the extended period. The Tribunal emphasized the legal precedent set by the Supreme Court in the Nizam Sugar case, stating that the extended period of limitation cannot be repeatedly invoked for the same set of facts. The Tribunal directed the adjudicating authority to re-examine the issue of extended period applicability in light of the Nizam Sugar ruling.

Final Decision:
The Tribunal held that the service provided by the appellant should be classified under 'works contract service' based on the Supreme Court's Larsen & Toubro judgment. Additionally, it determined that the construction of private roads falls under an exempt category within the works contract service definition. The Tribunal dismissed the Revenue's appeal, allowed the cross objections of the assessee, and directed the assessee to submit a calculation of tax liability under the works contract composition scheme. The Revenue's miscellaneous application for withdrawal was also disposed of. The decision was pronounced on February 7, 2020.