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2020 (11) TMI 538 - AT - Service TaxShort payment of Service Tax - Works Contract Services - Commercial of Industrial Building and Civil Structures and Erection Commissioning and Installation service - period is from October, 2004 to March, 2007 i.e. before 01.06.2007 - HELD THAT - There is no dispute that the service provided by the appellant is otherwise specified under Works Contract Service. The criteria for qualification of Works Contract Service is that the service should be provided along with material. It is obvious that when the services on construction is provided along with the material the assessee needs to pay VAT or the Works Contract Tax. From the above contract it is seen that the appellant is required to provide the service along with material like Cement, Metal, Steel Reinforcement, Sand, Charcoal, Salt and Earting Material. Moreover, in respect of the Works Contract Service the recipient of the service will deduct the Works Contract Tax which shows that the works contract service is suffered with works contract tax. As per this fact there is absolutely no doubt that the nature of service as well as facts such as service provided along with the material and it suffered works contract tax which clearly qualifies as Works Contract Service - When the revenue itself has allowed the abatement, it has admitted that the material cost is included in the gross value of the Works Contract Service. With this fact also, it is clearly established that the service provided by the appellant is Works Contract Service. As per the Hon ble Supreme Court s judgment in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS 2015 (8) TMI 749 - SUPREME COURT the works contract service is not taxable before 01.06.2007. In the present case, the entire period is prior to the said date therefore, in view of the apex court judgment the service being Works Contract Service is not taxable. Appeal allowed - decided in favor of appellant.
Issues:
1. Short payment of service tax by the appellant for the period October 2004 to March 2007. 2. Disagreement regarding the nature of services provided by the appellant. 3. Adjudication of penalties under various sections of the Act. 4. Appeal filed by the appellant against the Order-In-Appeal. 5. Remand to the adjudicating authority. 6. Confirmation of demand and imposition of penalties in the denovo Order-In-Original. 7. Appeal before the Commissioner (Appeals) and subsequent rejection. 8. Determination of whether the service provided by the appellant qualifies as Works Contract Service. 9. Application of abatement and exemption notifications in relation to the service tax demand. 10. Interpretation of relevant clauses in the contract between the appellant and the service recipient. 11. Compliance with Works Contract Tax deductions and implications on the nature of service provided. Analysis: 1. The appellant was found to have made a short payment of service tax amounting to ?4,91,497 for the period between October 2004 and March 2007 during an audit conducted by the department. The disagreement arose when the appellant claimed to have undertaken work on a sub-contract basis, while the department observed that the appellant had directly entered into contracts with firms, leading to the issuance of a Show Cause Notice. 2. The penalties imposed by the Adjudicating Authority under various sections of the Act were challenged by the appellant through an appeal before the Commissioner (Appeals), leading to the Order-In-Appeal dated 11.10.2011. The subsequent appeal filed before the tribunal resulted in a remand to the adjudicating authority for further proceedings. 3. The denovo Order-In-Original dated 16.07.2019 confirmed the demand and imposed penalties, which were upheld by the Commissioner (Appeals) in the Order-In-Appeal dated 22.4.2020, prompting the appellant to appeal before the Appellate Tribunal CESTAT AHMEDABAD. 4. The crux of the matter revolved around determining whether the service provided by the appellant qualified as Works Contract Service, especially in relation to the abatement of 67% allowed from the gross value of the service as per exemption notifications. The appellant argued that as per landmark judgments, Works Contract Service was not taxable before 01.06.2007, which covered the period in question. 5. Upon careful consideration of the submissions and perusal of the contract clauses, the tribunal concluded that the service provided by the appellant indeed fell under Works Contract Service. The inclusion of material in the service provision, deductions of Works Contract Tax, and admission by the revenue in the show cause notice supported this classification. Additionally, the allowance of abatement by the revenue indicated the inclusion of material costs in the gross value of the service. 6. Relying on the Supreme Court's judgment in a relevant case, the tribunal held that since the entire period in question predated 01.06.2007, the service being Works Contract Service was not taxable. Consequently, the impugned order was set aside, and the appeal was allowed in favor of the appellant.
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