2014 (7) TMI 369 - AT - Service Tax

Demand of service tax - Business Auxiliary service - Fabrication of storage tanks - Held that - As regards the service tax demand based on the allegation that the respondent have provided Business Auxiliary Service, we find that the activity which has been treated as Business Auxiliary Service, as described in the grounds of appeal, is fabrication of steel storage tanks, dozers, settlers, steel structures, platforms, railing, foundation frames etc. and their erection and installation in the factory. The Department s plea is that these steel items after being erected and installed become embedded to earth and become non-excisable goods and hence the activity of the respondent would be Business Auxiliary Service. The ground of appeal does not mention as to which clause of the definition of Business Auxiliary Service, as given in Section 65 (19) of the Finance Act, 1994, covers this activity. Probably the department wants to cover this activity under Production or processing of goods for or on behalf of a client, which does not amount to manufacture . But fabrication of steel storage tanks and steel structures would amount to manufacture and their erection and installation would certainly not be covered by Business Auxiliary Service. As regards the repair and maintenance service - during the period of dispute, this service was taxable when provided in terms of some contract or agreement and according to Commissioner (Appeals) s findings, there is no evidence to show that such repair and maintenance activity was conducted in terms of some contract or agreement - Decided against Revenue.

Issues Involved:
1. Allegation of non-payment of service tax for repair and maintenance service.
2. Allegation of non-payment of service tax for Business Auxiliary Service.
3. Appeal against the order-in-appeal by the Commissioner (Appeals).
4. Interpretation of the definition of Business Auxiliary Service under Section 65(19) of the Finance Act, 1994.

Detailed Analysis:

1. Allegation of Non-Payment of Service Tax for Repair and Maintenance Service:
The appellant alleged that the respondent provided repair and maintenance services without paying service tax from 16/06/05 to 31/03/06. The Jurisdictional Assistant Commissioner confirmed a service tax demand of Rs. 1,00,111/- along with penalties. However, the Commissioner (Appeals) set aside this demand stating that the repair and maintenance activity should be under a contract for taxation. As there was no evidence presented by the Department to prove the existence of a contract, the Commissioner's decision was upheld by the tribunal.

2. Allegation of Non-Payment of Service Tax for Business Auxiliary Service:
The appellant also claimed that the respondent provided Business Auxiliary Service without paying service tax from 10/09/04 to 31/03/06. The alleged service involved fabrication of steel storage tanks, structures, and their installation in a factory. The Department argued that these activities fall under Business Auxiliary Service as the installed items become non-excisable goods. However, the tribunal found this argument baseless, stating that fabrication and installation of such items amount to manufacturing, not Business Auxiliary Service. Therefore, the tribunal dismissed the appeal by the Revenue.

3. Appeal Against the Order-in-Appeal by the Commissioner (Appeals):
The Commissioner (Appeals) had set aside the service tax demands made by the Assistant Commissioner, leading to the Revenue's appeal. The tribunal, after hearing both sides and examining the records, found no fault in the Commissioner's decision. The tribunal upheld the order-in-appeal and dismissed the Revenue's appeal, stating that there was no illegality or impropriety in the impugned order.

4. Interpretation of the Definition of Business Auxiliary Service:
The tribunal analyzed the definition of Business Auxiliary Service under Section 65(19) of the Finance Act, 1994, to determine if the activities of the respondent fell under this category. It was concluded that the fabrication and installation of steel items by the respondent did not qualify as Business Auxiliary Service as claimed by the Department. The tribunal found the Department's argument to be unfounded and dismissed the appeal accordingly.

In conclusion, the tribunal upheld the Commissioner (Appeals) order, dismissing the Revenue's appeal and disposing of the Cross Objection filed by the respondent. The judgment clarified the taxation criteria for repair and maintenance services and the interpretation of Business Auxiliary Service under the relevant legal provisions.

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