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2017 (9) TMI 928 - AT - Service TaxPenalty - Site Formation and Clearance Service - Cargo Handling Service - Held that - the matter was under consideration by the Ministry of Coal and Finance and upon confirmation of the position that Service Tax is liable to be paid under the taxable service, SECL has accepted its liability and paid the Service Tax on behalf of the appellant. Works contract - composite contract - construction of Ash Dyke - Held that - the construction of the Ash Dyke in the premises of the service receiver was a composite contract, involving supply of goods as well as execution of the assigned task - In view of the fact that the essence of contract is construction of Ash Dyke, involving supply of goods on payment of appropriate VAT, splitting of the said contract to classify the service under site formation and clearance service in the adjudication order is not legally sustainable. Scope of work pursuant to the above work order should appropriately be classifiable under works contract service, leviable to service tax with effect from 01.06.2007 - In the present case, since the period involved is from 25.11.2005 to 03.06.2006, which is prior to the effective date of levy of service tax on works contract service, in our considered view, the Service Tax demand of ₹ 79,02,503/- cannot be confirmed against the appellant. The ld. Adjudicating Authority has already referred the matter to the Jurisdictional Service Tax Authorities for verification of the payment particulars - matter on remand.
Issues:
1. Service Tax demand under Site Formation and Clearance Service and Cargo Handling Service. 2. Imposition of penalty under Section 78 of the Finance Act, 1994. 3. Scope of work in a composite contract involving supply of goods and services. 4. Applicability of Works Contract Service for construction activities. 5. Invocation of Section 80 for waiver of penalty. Issue 1: Service Tax Demand The appellant challenged the penalty imposed in the impugned order after depositing the service tax liability for certain services provided. Regarding the service tax payment by SECL, it was confirmed that SECL paid the service tax on behalf of the appellant upon confirmation of liability. For the transportation service, the appellant deposited the entire amount along with interest. The appellant argued confusion regarding the proper classification of services, but no malafide motive was found for the delay in payment. Citing previous tribunal decisions, the benefit of Section 80 was invoked to waive the penalty, leading to the setting aside of the penalty imposed under Section 78. Issue 2: Scope of Work in Composite Contract The appellant contended that the construction of 'ash dyke' was a composite contract involving both supply of goods and services. The work order specified the complete work for Ash Dyke, indicating a composite nature of the contract. The adjudicating authority did not address the appellant's argument that the construction was awarded on a turnkey basis. The Tribunal found that splitting the contract to classify the service under site formation and clearance service was not legally sustainable. The scope of work should be classified under works contract service, leviable to service tax from 01.06.2007, and not prior to that date. Citing relevant case laws, the Tribunal set aside the Service Tax demand related to the construction of the Ash Dyke. Issue 3: Applicability of Works Contract Service The Tribunal observed that the essence of the contract for the construction of the Ash Dyke involved the supply of goods, making it classifiable under works contract service. Since the period in question was before the effective date of levy of service tax on works contract service, the demand for Service Tax related to the construction activity was not confirmed against the appellant. Citing precedent, the Tribunal allowed the appeal in favor of the appellant, setting aside the demand for Service Tax. Issue 4: Invocation of Section 80 The Tribunal considered the appellant's argument that there was a reasonable cause for the delay in payment of service tax. Finding no malafide motive for the delay, and following past tribunal decisions, the Tribunal invoked Section 80 to waive the penalty imposed under Section 78. The adjudication order imposing the penalty was set aside, and the appeal was allowed in favor of the appellant. Conclusion The Tribunal disposed of the appeal by setting aside the penalty imposed under Section 78, confirming the waiver of penalty under Section 80, and allowing the appeal in favor of the appellant regarding the Service Tax demands related to the services provided and the construction of the Ash Dyke.
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