2014 (5) TMI 306 - AT - Service Tax

Demand of service - commercial or industrial construction service - Held that - A taxing entry brought to the statute book at a later stage does not mean that legislature is prevented to tax an activity in terms of a former entry embracing an activity defined by law for taxation. When the work executed by the appellant could not be held as dam constructed, the appellant lost exemption. Service tax is not commodity taxation. The authorities have taxed the service which was taxable under law for the time being in force. The plea of sub-contract was disallowed. Nothing came to record to show that service tax leviable on the taxable service provided by the appellant had suffered tax in the hands of the sub-contractors. The Adjudicating authority in para 7.6 has examined the sub-contract issue also. Finding no evidence relating to the suffering of the work by the incidence of levy under Finance Act, 1994 he levied tax - On an overall examination of the plea of the appellant and findings in the adjudication order, we are prima facie of the view that Revenue s interest shall be prejudiced if no pre-deposit is called for - Conditional stay granted.

Issues:
1. Imposition of Service Tax and penalty under Section 78 of the Finance Act, 1994 for providing commercial or industrial construction service.
2. Eligibility for exemption from service tax based on the nature of the activity carried out.
3. Dispute regarding the classification of the constructed structure as a "dam" or a reservoir.
4. Treatment of sub-contracted work and liability for service tax.
5. Examination of the plea for pre-deposit to stay the service tax demand.

Issue 1: Imposition of Service Tax and Penalty
The adjudication was completed imposing Service Tax of Rs. 4,04,30,900/- with an equal amount of penalty under Section 78 of the Finance Act, 1994, based on the finding that the appellant provided commercial or industrial construction service, which is a taxable service under the Act. The appellant argued that if service tax is to be levied, it should be restricted to the value of the services only and not on the materials used in providing the service. The appellant also contended that the work was sub-contracted back to back, and since the contractors were liable to tax, the appellant should not be liable to pay service tax. Furthermore, the appellant claimed exemption based on the construction being akin to a "dam" which is exempt from service tax.

Issue 2: Eligibility for Exemption
The appellant argued that the construction work undertaken was not a commercial concern and that the value of the services should be the basis for levying service tax, not the materials used. The appellant also highlighted that no Cenvat credit was availed, making them eligible for exemption under certain notifications. Additionally, the appellant asserted that the work order received from NTPC was a composite works contract involving goods and services, which should not be liable to service tax during the relevant period.

Issue 3: Classification of Structure
The dispute arose regarding the classification of the structure as a "dam" or a reservoir. The adjudicating authority concluded that the structure constructed by the appellant did not qualify as a "dam," leading to the denial of exemption from service tax. The authority also dismissed the appellant's plea regarding sub-contracting of the work.

Issue 4: Sub-contracted Work and Tax Liability
The plea of sub-contracting and the liability for service tax on the work carried out by sub-contractors was examined. The authorities found no evidence to suggest that the service tax leviable on the appellant's taxable service had been paid by the sub-contractors. As a result, the adjudicating authority levied tax on the appellant.

Issue 5: Pre-deposit for Stay
After an overall examination of the appellant's plea and the findings in the adjudication order, the Tribunal directed the appellant to make a pre-deposit of Rs. 75.00 Lakhs as an interim measure to stay the service tax demand. The balance amount of service tax, interest, and penalty was to be stayed pending the appeal upon compliance with the pre-deposit directive.

This judgment delves into the intricacies of service tax imposition, exemption eligibility, classification of structures, treatment of sub-contracted work, and the requirement for a pre-deposit to stay the service tax demand. The detailed analysis provided by the Tribunal highlights the importance of legal interpretations and factual assessments in determining tax liabilities and exemptions in the realm of commercial and industrial construction services.

← Previous Next →