2015 (7) TMI 883 - AT - Service Tax

Demand of service tax - Construction of residential complex service - Held that - Repair work of shop floor in the Ordinance factory owned and control by the Government of India, Ministry of Defense, does not qualify under the category of commerce or industrial construction service and accordingly, I hold that no tax is payable by the appellant under the category of commercial or industrial construction service . The demand confirmed vide the impugned order is set aside and all the penalties are deleted. - Decided in favour of assessee.

Summary

Issues:
1. Tax liability under "construction of residential complex service" for construction works provided to Military Engineering Services.
2. Applicability of tax under "commercial or industrial construction service" for flooring work in Ordinance factories.
3. Proper investigation and scope of show cause notice in confirming tax liability.

Issue 1:
The appellant, a contractor providing construction works for Military Engineering Services, was issued a show cause notice alleging liability for service tax under "construction of residential complex service" for constructing mess for the Army. The appellant contested the notice, offering to pay tax under "Commercial or Industrial Construction service" for the flooring work in Ordinance factories. The Order-in-Original confirmed a demand, including penalties, under the "Commercial or Industrial Construction" head. The Commissioner (Appeals) dropped the demand for residential quarters but confirmed the demand for shop flooring, stating proper investigation was lacking. The appellant, having paid the tax, appealed to the Tribunal.

Issue 2:
The appellant argued that tax paid under "commercial or industrial construction service" for repairs of the shop floor in the Ordinance factory, controlled by the Government of India, should not be taxable. The Tribunal held that such repair work does not qualify as "commercial or industrial construction service," concluding that no tax is payable under this category. The demand was set aside, penalties deleted, and the appellant entitled to a refund of tax and interest paid.

Issue 3:
The Tribunal found that the repair work on the shop floor in the Ordinance factory, being under the control of the Government of India, Ministry of Defense, does not fall under "commercial or industrial construction service." Therefore, the demand confirmed by the Commissioner (Appeals) was set aside, penalties deleted, and the appellant directed to receive a refund of the tax and interest paid within 45 days.