2015 (12) TMI 275 - AT - Service Tax

Demand of service tax - Construction of commercial and industrial construction services, site formation services, excavation and earthmoving and demolition service - Held that - Taxability of the services rendered by the appellant is not in question. The learned Counsel submitted that demand as per the show-cause notice is ₹ 17,36,852/- and after giving adjustments for cum tax and various other deductions, the first appellate authority has confirmed the demand of ₹ 14,81,918/-. It is his submission that the service tax liability, which has been worked out by the lower authorities on the free supply of materials by the customers needs to be excluded is correct as the Larger Bench of this Tribunal in the case of Bhayana Builders (P) Ltd. Vs. CCE 2013 (9) TMI 294 - CESTAT NEW DELHI (LB) is holding a view that value of free supply of materials cannot be included in gross value for the discharge of service tax liability. - service tax liability which has been confirmed by the first appellate authority should be re-worked out taking into consideration the free supply of materials. According to the learned Counsel, the net service tax that would be payable after extending benefit of Larger Bench decision would be ₹ 4,06,343/-. - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
Demand of service tax on various services rendered by the appellant, reduction of tax liability due to free supply of materials, imposition of penalties, applicability of Section 80 of the Finance Act, 1994 for setting aside penalties.

Analysis:

Issue 1: Demand of Service Tax
The appeal was directed against the order confirming the demand of service tax on services provided by the appellant, including construction services, site formation, excavation, and demolition. The appellant did not dispute the tax liability but sought a reduction based on the free supply of materials. The Tribunal noted that the taxability of the services was not in question. Referring to a precedent, the Tribunal held that the value of free supply of materials cannot be included in the gross value for service tax liability calculation. Consequently, the service tax liability was reworked, resulting in a reduced amount payable by the appellant.

Issue 2: Reduction of Tax Liability
The appellant argued that the tax liability should be reduced due to the free supply of materials. The Tribunal agreed with this argument, citing a previous decision by a Larger Bench. The net service tax payable after considering the free supply of materials was recalculated to be a lower amount than initially demanded. The Tribunal directed the lower authorities to verify and authenticate the revised tax liability amount.

Issue 3: Imposition of Penalties
The penalties imposed by the adjudicating authority and upheld by the first appellate authority were challenged by the appellant. The Tribunal found merit in the appellant's argument that during the relevant period, the tax liability for works contracts was a subject of legal debate. Given that the issue had been settled by a Larger Bench, the Tribunal invoked Section 80 of the Finance Act, 1994, to set aside the penalties imposed on the appellant. Consequently, the penalties were waived in light of the legal uncertainty surrounding the tax liability for works contracts during the relevant period.

Conclusion
The Tribunal disposed of the appeal by reducing the service tax liability based on the free supply of materials, setting aside the penalties imposed on the appellant, and invoking Section 80 of the Finance Act, 1994, to provide relief to the appellant due to the legal uncertainty surrounding the tax liability for works contracts.