2023 (9) TMI 1139 - AT - Service Tax

Classification of services - commercial and industrial construction service or works contract service? - services provided to Bharat Heavy Electricals Limited (BHEL) for construction of Thermal Power Plant - HELD THAT - The appellant is providing the said service along with material, in that circumstances, the appropriate classification of the activity undertaken by the appellant is works contract service , as held by the Hon ble Apex Court in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS 2015 (8) TMI 749 - SUPREME COURT , wherein the Hon ble Apex Court has observed that A close look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which defines taxable service as any service provided . All the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as for example, a service contract which is a commissioning and installation, or erection, commissioning and installation contract. Thus, the appellant is not liable to pay service tax under commercial or industrial construction service. Therefore, demand of service tax of Rs.30,11,274/- is set aside. Levy of penalty - HELD THAT - Penalty on the appellant is not imposable as they have paid the entire amount of service tax along with interest before issuance of show cause notice. Appeal allowed.

Summary

Issues involved:
The issues involved in this case include non-payment of service tax under the category of commercial and industrial construction services, works contract, maintenance & repair, supply of tangible goods, and service tax on services provided to Bharat Heavy Electricals Limited (BHEL) for construction of Thermal Power Plant.

Issue 1: Non-payment of service tax under various categories:
The appellant, a private limited company, was under scrutiny for non-payment of service tax under different categories such as commercial and industrial construction services, works contract, maintenance & repair, supply of tangible goods, and service tax on transportation of goods by road. The appellant initially paid the applicable service tax along with interest after proceedings were initiated. Subsequently, a show cause notice was issued proposing a demand for service tax, which was adjudicated and confirmed. The appellant did not contest the demands under most categories except for a specific amount under works contract services due to a calculation error.

Issue 2: Classification of services provided to BHEL:
The appellant contested the demand of service tax on services provided to Bharat Heavy Electricals Limited (BHEL) for the construction of a Thermal Power Plant. The appellant argued that the services should be classified under Works Contract Services rather than Commercial Industrial Construction Services. They claimed that the service involved the supply of material along with the service, qualifying it as a works contract service. The appellant relied on a previous decision to support their case and requested the demand under commercial or industrial construction service to be set aside.

Judgment:
The Tribunal confirmed the demands under works contract service, maintenance & repair service, supply of tangible goods, and goods transport agency service as the appellant did not contest these. However, the demand under commercial and industrial construction service was set aside. The Tribunal agreed with the appellant that the services provided to BHEL should be classified as works contract services based on relevant legal precedents. Additionally, the Tribunal refrained from imposing a penalty on the appellant, considering the circumstances where the entire service tax amount along with interest was paid before the show cause notice was issued.

Conclusion:
In summary, the Tribunal confirmed most of the demands related to various services provided by the appellant but set aside the demand under commercial and industrial construction service. The appellant was directed to pay the outstanding amount under works contract service along with interest. No penalty was imposed on the appellant due to the timely payment of the service tax amount.