2025 (4) TMI 1291 - AT - Service Tax

Classification of services - works contract services or erection commissioning and installation services? - exemption from payment of service tax for the services rendered to Government authorities such as CPWD - principles of natural justice was not followed either by the adjudicating authority or the appellate authority - HELD THAT - It is seen that the appellant has not submitted any documents/ records to substantiate their claims before the original adjudicating authority or the Commissioner (Appeals). In fact one of the grounds of appeal is that the principles of natural justice was not followed either by the adjudicating authority or the appellate authority. Further the appellant has disputed the computation of service tax liability for the Financial Years 2009-10 2010-11 2011-12 and 2013-14. Copies of the Balance Sheets Challans evidencing payment of service tax etc. has been submitted with the present appeal. The adjudicating authority or the Commissioner (Appeals) were not given the opportunity to examine the said documents and appreciate the submissions of the appellant. Conclusion - The matter requires to be remanded to the original authority for adjudication. The appellant will be given the opportunity to submit all relevant records and documents to substantiate his claims. The adjudicating authority may finalise the case expeditiously. The appeal is allowed by way of remand.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the services rendered by the appellant fall under the classification of "Works Contract Service" or "Erection, Commissioning and Installation Service" for the purpose of service tax liability during the period from 2004 to 2014.

- Whether the appellant was exempt from payment of service tax for the services rendered to Government authorities such as CPWD under the relevant exemption notifications.

- Whether the demand of service tax was correctly computed based on the gross contract receipts, and whether the best judgment assessment method was appropriately applied by the department.

- Whether the extended period of limitation could be invoked given the nature of documents relied upon for demand.

- Whether the appellant was liable to pay interest and penalties given the alleged non-payment of service tax and non-filing of returns.

- Whether principles of natural justice were followed by the adjudicating authority and appellate authority, especially in light of the appellant's non-appearance and non-submission of documents during the original proceedings.

2. ISSUE-WISE DETAILED ANALYSIS

Classification of Services Rendered (Works Contract Service vs. Erection, Commissioning and Installation Service)

The appellant contended that their services constituted Works Contract Services as defined under Section 65(105)(zzzza) of the Finance Act, 1994, introduced on 1.6.2007, involving composite contracts with supply of goods and labour. They argued that prior to 1.6.2007, no machinery existed for taxing indivisible contracts involving transfer of property in goods, and hence, their contracts could not be classified as Erection, Commissioning and Installation Services. The appellant relied on the Supreme Court judgment in the Larsen & Toubro Ltd case (2016) which clarified the tax treatment of works contracts.

The department and appellate authority, however, classified the services under "Construction of Commercial and Industrial services" or Erection, Commissioning and Installation Services, rejecting the appellant's claim. The adjudicating authority noted that the services were more of completion and finishing nature and not covered under the notification for abatement applicable to works contracts.

The Court noted that the appellant failed to submit agreements or sufficient documents to substantiate their claim of composite works contracts. The impugned order found the appellant's submissions sketchy and unrelated to the periods under dispute, rendering verification impossible.

Given the absence of documentary evidence, the Court refrained from conclusively deciding the classification issue but recognized the appellant's contention on the legal framework and precedent. The Court directed a remand to the original authority to examine the classification afresh upon submission of relevant records by the appellant.

Exemption for Services Rendered to Government Authorities

The appellant argued that services rendered to CPWD, a Government authority, were exempt under Notification No. 25/2012-ST dated 20.06.2012, which exempts construction and related services provided to government or local authorities for civil structures predominantly used for non-commercial purposes.

The department disputed this claim, noting the absence of sufficient documentation and the appellant's failure to prove that the services were non-commercial or predominantly for public use.

The Court observed that the appellant did not submit adequate evidence before the adjudicating or appellate authorities to establish the exemption claim. The Court, therefore, did not uphold the exemption but allowed the appellant an opportunity to produce relevant documents on remand for proper adjudication.

Computation of Taxable Value and Use of Best Judgment Assessment

The appellant challenged the computation of service tax liability for financial years 2009-10, 2010-11, 2011-12, and 2013-14, contending that the department used inflated gross contract receipts contrary to the values in the appellant's balance sheets. The appellant also argued that the department failed to apply abatement where applicable and unjustifiably loaded notional growth in turnover for assessment.

The department justified the use of best judgment assessment under Section 72 due to the appellant's failure to submit complete records or respond to show cause notices. The adjudicating authority relied on available documents and public records to determine the demand.

The Court found merit in the appellant's contention that the adjudicating authority and appellate authority did not have the opportunity to examine the balance sheets and other documents submitted during the present appeal. The Court held that the best judgment assessment could not be sustained without giving the appellant a chance to substantiate their claims with proper records.

The Court accordingly ordered remand for re-adjudication with opportunity to the appellant to produce all relevant financial documents.

Extended Period of Limitation

The appellant contended that the extended period could not be invoked as the demand was based on public documents such as balance sheets and auditor's reports.

The department did not specifically address this contention in detail but relied on the absence of records from the appellant to justify the extended period.

The Court did not expressly decide on the applicability of the extended period but implicitly indicated that since the matter was being remanded for fresh adjudication with full opportunity to the appellant, the issue of limitation would be subject to proper examination by the original authority.

Interest and Penalty Liability

The appellant argued that there was no intention to evade tax, no collection of service tax from clients, and a bona fide belief of non-liability to pay service tax. Therefore, interest and penalties were not sustainable.

The department maintained that the appellant suppressed details and failed to comply with statutory obligations, justifying interest and penalty under the relevant provisions.

The Court noted that since the question of tax liability itself was not conclusively determined and the appellant was to be given an opportunity to establish their case, the question of interest and penalty would also require reconsideration on remand.

Compliance with Principles of Natural Justice

The appellant contended that principles of natural justice were violated as the adjudicating and appellate authorities passed orders ex parte without considering documents submitted later.

The department pointed out that the appellant failed to appear at personal hearings despite multiple opportunities and did not submit records during original proceedings.

The Court observed that the appellant did not appear for personal hearings and that some communications were returned undelivered. However, the Court also noted that documents submitted with the present appeal were not considered by the earlier authorities. In the interest of justice, the Court set aside the impugned order and remanded the matter for fresh adjudication with opportunity to the appellant to present all relevant evidence and arguments, thereby ensuring compliance with natural justice principles.

3. SIGNIFICANT HOLDINGS

"Since the appellant has not submitted any documents/ records to substantiate their claims before the original adjudicating authority or the Commissioner (Appeals)... the matter requires to be remanded to the original authority for adjudication. The appellant will be given the opportunity to submit all relevant records and documents to substantiate his claims."

"In absence of complete records, the department has based its findings on records submitted and best judgment assessment arrived at the value of services rendered. The approach of the department can't be faulted with in absence of any records to substantiate claim of appellants."

"Following the principle of natural justice, Personal hearing was given to the assessee... which was not attended by the assessee... Since assessee has not appeared before me despite repeated opportunity... I assume that assessee has nothing to submit in this case and assessee accepts the allegations contained in the Show Cause Notice. Nevertheless upholding the principle of Natural Justice it is necessary for me to examine the allegations contained in the Show Cause Notice on merits..."

The Court established the principle that in cases where the appellant fails to submit documents or appear for hearings, the department may proceed with best judgment assessment. However, if the appellant subsequently submits relevant documents, the matter must be remanded for fresh adjudication to ensure fair opportunity and compliance with natural justice.

Final determinations on the issues were deferred pending remand. The Court set aside the impugned order and allowed the appeal by remanding the case for fresh adjudication with full opportunity to the appellant to substantiate their claims, including classification of services, exemption applicability, valuation, and other related issues.