2009 (7) TMI 713 - AT - Service Tax

Construction service- activity undertaken under works contract. Work contract service brought under service tax from 1.6.2007 and for prior period service tax not payable under pre-existing category. Building constructed to house facility for production of battle tanks not covered under Commercial or Industrial Construction Service as per definition. Held that- service tax already paid on construction of resorts for tourism development corporation. Pre-deposit waived.

Summary

Issues:
1. Demand of service tax and Education Cess under Section 73(1) of the Finance Act, 1994.
2. Challenge regarding taxation of construction services for Ministry of Defense.
3. Challenge regarding taxation of construction services for Andhra Pradesh Tourism Development Corporation.
4. Application for waiver of pre-deposit and stay of recovery of dues.
5. Dispute over whether activities were carried out under works contracts.
6. Interpretation of the definition of construction service under Section 65(30a) and Section 65(25b).

Analysis:
1. The appellant sought waiver of pre-deposit and stay of recovery of dues amounting to service tax, Education Cess, interest, and penalty demanded under Section 73(1) of the Finance Act, 1994. The main contention was the challenge against the demand of Rs. 91,75,173/- for construction services provided to the Ministry of Defense for building facilities involved in the production of military hardware. The appellant argued that the construction was not primarily for commercial activities and could not be taxed as such. Additionally, they contended that the activities were carried out under works contracts, which were not taxable under any other heading before 1-6-2007. Reference was made to relevant case law to support their arguments.

2. The demand of Rs. 5,19,526/- for construction services rendered to the Andhra Pradesh Tourism Development Corporation was also challenged. The appellant argued that the construction was aimed at promoting welfare and not for commercial purposes, making it ineligible for taxation under construction services. They highlighted that the construction was part of a composite contract for provision of materials and services, and sales tax was paid on the materials. The appellant relied on case law, including the Diebold Systems (P) Ltd. case, to support their position.

3. The Commissioner rejected the works contract argument put forth by the appellant, stating that there was a lack of evidence regarding payment of sales tax on works contracts. The matter was suggested to be remanded for further consideration. However, upon careful consideration, the Tribunal found that the impugned activities were indeed carried out under works contracts. As works contracts were brought under the tax net from 1-6-2007, the activities could not be taxed under a pre-existing category for the period before that date. The Tribunal referenced the Diebold Systems (P) Ltd. case to support this conclusion.

4. The Tribunal analyzed the definition of construction service under Section 65(30a) and Section 65(25b) for the relevant periods. It was noted that the argument against the eligibility of buildings constructed for housing facilities for the production of battle tanks under the commercial or industrial service heading had merit. Considering the circumstances and the payment of service tax for construction of resorts for APTDC, the Tribunal ordered a complete waiver of pre-deposit of the adjudged dues and a stay of recovery pending the appeal decision.