2020 (4) TMI 343 - AT - Service Tax

Handling and transportation of coal for SECL and MCL - Whether coal transported from pitheads of the mines to the railway sidings would fall within the taxable service defined under section 65 (105) (zzzy) of the Act? - HELD THAT - The Supreme Court in COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR VERSUS SINGH TRANSPORTERS 2017 (7) TMI 494 - SUPREME COURT held that the activity would appropriately be classified under the head transport of goods by road service and the activity does not involve any service in relation to mining of mineral as contemplated under section 65(105) (zzzy) of the Act. The Supreme Court also held that the definition of mines has no apparent nexus with the activity undertaken under the service rendered - demand do not sustain. Construction of shop cum godown for mandi samiti - HELD THAT - In the instant case, the definition of commercial or industrial construction remained the same even after 1 June, 2007. The demand could not, therefore, have been confirmed under commercial or industrial construction service. Commercial or industrial construction Service - Construction of road inside BALCO, SECL, NTPC - HELD THAT - It clearly shows that services provided in respect of roads, airports, railways, terminals, bridges, tunnels and dams have been excluded. The Commissioner has observed that the road should be a public road and not a private road. It is not possible to accept this distinction drawn by the Commissioner because the section does not draw a definition between a private road or a public road - This Tribunal in Rajendra Singh Bhamboo vs. Commissioner of Excise and Service Tax, Jaipur 2018 (4) TMI 772 - CESTAT NEW DELHI . The Tribunal held that the definition does not specify the type of road and so the road cannot be restricted to a public road only. Thus, whether a road is for public utility or for the utility of an organisation, the benefit of the exclusion clause has to be given. Commercial or industrial construction service - Internal road construction work - Construction of CSEB Internal road - HELD THAT - This issue has been discussed while dealing with the construction of road inside the premises of BALCO, SECL, NTPC. It would not be possible to sustain Construction of residential houses for employees of NTPC - HELD THAT - This issue was examined by the Tribunal in Khurana Engineering Limited vs. Commissioner of Central Excise, Ahmedabad 2010( 11) TMI 81-CESTAT, AHMEDABAD . The Bench held that the residential complex was constructed for use by the Income Tax Department to provide the same on rent to its employees and, therefore, the service cannot be included in the definition of residential complex services - as the Appellant had constructed residential houses for employees of NTPC., the activity would not be subjected to levy of service tax - Demand do not sustain. Handling/transportation of coal in the JPL plant area - HELD THAT - A perusal of the work order shows that the activity undertaken by the Appellant was of transportation of coal through dumpers. The Appellant loads the coal on to the dumpers using pay loaders and then transports the coal to the power plant. The activity, therefore, is clearly of transportation of goods by road and the liability to pay service tax is on the recipient of service and not on the service provider - it would be appropriate to refer to a decision of this Tribunal in Jain Carrying Corporation vs. Commissioner of Central Excise, Jaipur 2019 (3) TMI 864 - CESTAT NEW DELHI . The Bench observed that the transportation was the main activity and loading and unloading was incidental to transportation. The service rendered would, therefore, be transportation of goods by road and not cargo handling service - demand do not sustain. Learned Counsel for the Appellant has also submitted that the computation of demand under the aforesaid six heads is incorrect. According to the Appellant the demand under the aforesaid six heads comes to ₹ 5,90,69,053/- as indicated - The submission is that once the impugned order holds the transactions to be taxable, values corresponding to such transactions only should have been made taxable for which the liability would come to ₹ 5,90,69,053/-. The submission deserves to be accepted. In any case, the demand has been confirmed only under six heads, and it has been found that the demand could not have been confirmed under these heads. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:

1. Handling/Transport charges for transportation of coal within mines.
2. Construction of shop-cum-godown for Krishi Upaj Mandi Samiti.
3. Construction of road inside the premises of BALCO, SECL, NTPC.
4. CSEC internal road construction work provided to Prasad & Co.
5. Construction of residential houses for employees of NTPC.
6. Handling/Transportation of coal within Jindal Super Thermal Power Plant.

Issue-wise Detailed Analysis:

1. Handling/Transport Charges for Transportation of Coal within Mines:

The Commissioner classified the transportation of coal within mines as "mining services" under section 65(105)(zzzy) of the Act, based on the definition of "mines" from the Mines Act, 1952. However, the Supreme Court in Singh Transporters held that transporting coal from pitheads to railway sidings falls under "transport of goods by road service" and not "mining services." Consequently, the demand under this head was not sustainable.

2. Construction of Shop-cum-Godown for Krishi Upaj Mandi Samiti:

The Commissioner considered the construction of a shop-cum-godown for Krishi Upaj Mandi Samiti as taxable under "commercial or industrial construction" service. The Appellant argued that the activity should be classified under "works contract," which became taxable only from 1 June 2007. The Supreme Court in Larsen & Toubro clarified that composite works contracts could not be taxed under other service categories before 1 June 2007. Thus, the demand under this head could not be sustained.

3. Construction of Road Inside the Premises of BALCO, SECL, NTPC:

The Commissioner held that construction of roads inside private premises does not qualify for the exemption under "commercial or industrial construction" service. However, the Tribunal in Rajendra Singh Bhamboo ruled that the definition does not distinguish between private and public roads. Therefore, the demand under this head was unsustainable.

4. CSEC Internal Road Construction Work Provided to Prasad & Co.:

The Commissioner confirmed the demand under "commercial or industrial construction" service for internal road construction work. Similar to the previous issue, the Tribunal's ruling in Rajendra Singh Bhamboo applies, making the demand under this head unsustainable.

5. Construction of Residential Houses for Employees of NTPC:

The Commissioner confirmed the demand for constructing residential houses for NTPC employees under "commercial or industrial construction" service. The Tribunal in Khurana Engineering Limited held that residential complexes for employees fall under "personal use" and are not taxable under "residential complex" services. Thus, the demand under this head could not be sustained.

6. Handling/Transportation of Coal within Jindal Super Thermal Power Plant:

The Commissioner classified the transportation of coal within the power plant as "cargo handling service." The Tribunal in Jain Carrying Corporation clarified that transportation with incidental loading/unloading is "transportation of goods by road" and not "cargo handling service." Therefore, the demand under this head was unsustainable.

Conclusion:

The demands under all six heads were set aside. The computation of the demand was also found to be incorrect, as the confirmed amount exceeded the taxable value. The impugned order dated 25 March 2014 was set aside, and the appeal was allowed.