2023 (8) TMI 1321 - AT - Service Tax

Works Contract Service - Failure to discharge the service tax on the consideration received - appellant had not obtained service tax registration and had not filed ST-3 returns - N/N. 06/2015-ST dated 20.03.2015 - HELD THAT - It is noted by the adjudicating authority that due to lack of documents, the income as shown in the P L Statement is taken as the basis for computing the tax liability. The Department has quantified the duty by extending the benefit of abatement, wherever documents are available. Wherever there was no documentary evidence, the quantification of Service Tax was arrived at without extending the benefit of abatement. Needless to say, that in works contract services, as cost of materials also form part of the contract, the benefit of abatement has to be extended to an assessee. It is clarified in the letter dated 26.07.2022 issued by the Public Works Department that the amount shown under Service Tax heading has to be read as TDS on Sales Tax (VAT). Such letters have been issued by other Government departments also. The impugned order does not seem to have considered all these aspects. It is also to be borne in mind that in case of works contract services rendered to Government authorities, the amount is paid to the contractor on the basis of work completion as recorded in the Measurement Book (M-book) which is maintained by the departments. The appellant could not obtain such documents due to the outbreak of the Covid-19 pandemic. They have now produced filed miscellaneous application, and produced documents. The appellant has to be given an opportunity to put their defence on the basis of the documents furnished by them. The matter is remanded to the adjudicating authority for de novo adjudication - Appeal allowed by way of remand.

Summary

Issues Involved:
1. Non-registration and non-filing of service tax returns.
2. Determination of service tax liability under works contract services.
3. Applicability of exemption under Notification No. 25/2012-ST.
4. Invocation of extended period under Section 73(1).
5. Consideration of additional documents and cum tax benefits.

Summary:

Non-registration and Non-filing of Service Tax Returns:
The appellant provided 'Works Contract Services' to various Government departments but failed to obtain service tax registration and file ST-3 returns. They believed that services provided to the Government were not taxable, thus did not collect or remit service tax.

Determination of Service Tax Liability:
The original authority confirmed a demand of Rs. 5,19,81,818/- along with interest and penalties. The appellant argued that the adjudicating authority did not correctly determine the value of goods under Rule 2A of the Service Tax (Determination of Value) Rules, 2006, and failed to consider the profit and loss account for determining the value of goods consumed in works contract services.

Applicability of Exemption under Notification No. 25/2012-ST:
The appellant contended that the exemption under Notification No. 25/2012-ST was applicable as per clauses (a) and (b) of Sl. No. 12A, which were distinct from clause (c). They argued that the exemption was wrongly denied by the adjudicating authority and relied on various judicial decisions to support their claim.

Invocation of Extended Period under Section 73(1):
The adjudicating authority invoked the extended period under Section 73(1) on the grounds that the appellant collected service tax but did not deposit it with the Government. The appellant provided letters from Government departments clarifying that the amounts shown as service tax were actually TDS on Sales Tax (VAT).

Consideration of Additional Documents and Cum Tax Benefits:
The appellant sought permission to produce additional documents which were not available during the adjudication due to the Covid-19 pandemic. They argued that the P&L Statement was not fully considered for extending the benefit of abatement. The Tribunal allowed the submission of additional documents and remanded the matter for de novo adjudication, emphasizing the need to consider the appellant's defense based on the newly furnished documents.

Conclusion:
The Tribunal set aside the impugned order and remanded the matter to the adjudicating authority for fresh adjudication, allowing the appellant to present additional documents and arguments. All issues were left open for reconsideration. The appeal was allowed by way of remand.