2023 (7) TMI 64 - AT - Service Tax

Classification of services - providing construction services in respect of commercial or industrial buildings and civil structures - classifiable under Erection, Commissioning or Installation Service or Commercial or Industrial Construction Service (CICS)? - Extended period of limitation - scope of SCN - HELD THAT - The activity of appellant is of pre-casting a concrete structure or the steel body of a specific shape to be fixed underground either by pre-casting it on the ground level and then inserting it under the ground or by constructing the pillar under the ground itself by a special technique. Thus, the activity of the appellant is dominantly in relation of a building or a civil structure meant for construction of a new building/civil structure. We are therefore of the opinion that this activity cannot be called as the activity of Erection, Commissioning or Installation Services which is about installation of several things as mentioned in the definition in clause (a) to clause (f) of section 65 (39a) of Finance Act in an already constructed building or civil structure - the activity /service provided by the appellant is precisely a service of providing commercial or industrial construction/construction services as has been held by Commissioner (Appeals) in the order under challenge. Scope of SCN - HELD THAT - In the present case, the appellant was acting as a sub-contractor/a job worker. The question of him being the owner of the goods used in pile formation works does not at all arise. The main contractor / service recipient himself was the owner of the goods. Commissioner (Appeals) has failed to appreciate the basic mandate of the definition of works contract service. Hence the services have wrongly been classified as works contract services. Commissioner (Appeals) has otherwise nowhere denied that the structure constructed by the appellant is in relation to the construction of bridges etc. which is different from structure mentioned in the definition of ECIS - the Commissioner (Appeals) has committed an error while classifying the service under work contract service. While doing so he has gone beyond the scope of Show Cause Notice. It is clear that services provided by the appellant are purely the services of CICS as defined under section 65 (25b) of the Act and when such service is provided with respect to road, bridges, tunnels etc. these are exempted from the tax liability. Hence no question arises for any service tax liability even on the main contractor - The main contractor has been awarded the contract of constructing Roads, Pillars, Bridges etc. and appellant as sub-contractor is constructing support to said construction. Time Limitation - HELD THAT - The activity falls under construction services, and it is held that there is neither any misrepresentation nor any suppression of fact on part of the appellant. The extended period has wrongly been invoked while issuing the impugned Show Cause Notice. For the same reason, there appears no circumstance for the imposition of penalty. Resultantly the entire demand otherwise gets barred by time. The order of Commissioner (Appeals) while remitting back the matter to the Original Adjudicating Authority after classifying the impugned activity as works contract service is beyond to what was proposed in the Show Cause Notice, is not sustainable - Appeal allowed.

Summary

Issues Involved:
1. Classification of services rendered by the appellant.
2. Liability of the appellant to pay service tax.
3. Invocation of extended period of limitation.
4. Imposition of penalty.

Summary:

1. Classification of Services Rendered by the Appellant:
The appellant was involved in providing construction services, specifically pile foundation work for bridges, roads, and schools. The Department classified these services under "Erection, Commissioning or Installation Service" (ECIS) taxable from 01.05.2006, while the appellant argued they should fall under "Commercial or Industrial Construction Service" (CICS) or be exempt as per section 65 (25b) of the Finance Act. The Commissioner (Appeals) classified the services as works contract service, which was contested by the appellant.

2. Liability of the Appellant to Pay Service Tax:
The appellant contended that as a subcontractor, they were not liable to pay service tax since the main contractors discharged the tax liability. They also argued that services provided for government projects were exempt. The Department maintained that the appellant's services were taxable under ECIS and that the appellant's registration under CICS constituted misrepresentation.

3. Invocation of Extended Period of Limitation:
The appellant argued that the extended period of limitation was wrongly invoked as there was no intent to evade tax. They cited confusion about subcontractors' liability and previous decisions supporting their non-liability. The Department justified the extended period due to misrepresentation and suppression of facts by the appellant.

4. Imposition of Penalty:
The appellant contested the penalty, arguing that there was no misrepresentation or suppression of facts. The Department argued that the appellant's incorrect registration and non-disclosure justified the penalty.

Judgment:
After analyzing the definitions of ECIS, CICS, and works contract service, the Tribunal concluded that the appellant's activities were more aligned with CICS, specifically construction services related to roads, bridges, and tunnels, which are exempt from tax. The Tribunal found that the Commissioner (Appeals) erred in classifying the services as works contract service and went beyond the scope of the Show Cause Notice.

The Tribunal also held that there was no misrepresentation or suppression of facts by the appellant, rendering the invocation of the extended period of limitation and the imposition of penalties unjustified. Consequently, the Tribunal set aside the order of the Commissioner (Appeals) and allowed the appeal, exempting the appellant from the service tax liability and penalties.

Conclusion:
The Tribunal held that the services provided by the appellant were exempt under CICS, the extended period of limitation was wrongly invoked, and the penalties were unjustified. The appeal was allowed, and the order of the Commissioner (Appeals) was set aside.