2011 (2) TMI 683 - AT - Service Tax

Demand, interest and penalty - providing the services of erection, commissioning and installation of air conditioning and related works to various customers, such as military, railways, and airports etc - Held that- The repairs and maintenance services are linked with a building/structure which are not used for commercial activities such service may not be taxable - As MES (a Department of Ministry of Defence) is not involved in any commercial activity, therefore any service rendered to them is not taxable - This issue has also not been dealt with by the adjudicating authority. Therefore, the services rendered to MES during the impugned period are not liable to service tax - Further find that during the impugned period, the service tax is leviable on the value of the service provided - It is admitted fact that the appellants have not provided service separately and charged service tax seperataly - Therefore, appellants are entitled for cum service tax benefit, this aspect has also not been considered by the adjudicating authority - Therefore, it would be appropriate in the interest of justice that the adjudicating authority shall examine the issue in view of the above observations and pass appropriate orders - Thus, the appeal is allowed by way of remand.

Summary

Issues:
Appeal against demand of service tax and penalties under Sections 76, 77 & 78 of the Finance Act, 1994 for activities of erection, commissioning, and installation service. Interpretation of the Finance Act, 1994 regarding service tax liability, registration, and return filing. Classification of turnkey contracts for designing, supplying, installing, and commissioning HVAC systems. Applicability of service tax on activities pre and post 10-6-2007. Invocation of extended period for demand. Taxability of activities for Military Engineering Service (MES) and imposition of penalties.

Analysis:
The appellants appealed against a demand for service tax and penalties under Sections 76, 77 & 78 of the Finance Act, 1994 for their activities involving erection, commissioning, and installation service. The case revolved around the appellants' failure to register and discharge service tax liability for the mentioned activities from 1-10-2003 to 30-9-2008. The appellants contended that they were executing turnkey contracts for HVAC systems for various entities like military, railways, and airports. They argued that the contracts were composite in nature, involving the supply of complete systems, which should not be classified as erection, commissioning, and installation service.

The appellants further argued that their activities were taxable only post 10-6-2007 under the execution of works contract service. They relied on precedents to support their claim that turnkey contracts were not taxable before 1-6-2007. Additionally, they challenged the demand raised before this period, citing the absence of an abatement scheme for services classified under "execution of works contract service." They also contended that the extended period for demand was not applicable as they did not suppress any facts to evade tax.

Regarding the taxability of activities for Military Engineering Service (MES), the appellants presented a letter from MES indicating that services linked to non-commercial buildings/structures were not taxable. They argued that since MES was not engaged in commercial activities, services provided to them should not attract service tax. The Tribunal found merit in the appellants' arguments and directed a re-examination of the issue by the adjudicating authority.

In conclusion, the Tribunal allowed the appeal by remanding the case for further examination in light of the observations made. The impugned order was set aside, and the stay application was disposed of accordingly. The decision emphasized the need for a detailed reassessment of the tax liability and classification of services provided by the appellants, especially concerning their contracts with MES and the applicability of service tax on specific activities within those contracts.