2017 (9) TMI 1382 - AT - Service Tax

Consideration received form railways - whether would be exempted under N/N. 12/2012-S.T. dated 20.06.2012? - Held that - CBEC has clarified that welding of railway track is a process of metal joinery which falls in the category of completion of services as defined in the Commercial or Industrial Structure Services. Sl.No.14 of the above Notification exempts service tax in respect of services for Construction, Erection and Commissioning or installation of original works. Activities carried out by the appellant do not fall within the definition of original works as given above, since the activities do not fall within any of the sub-headings - even though services have been rendered for railways, the benefit of notification No.25/2012 is not available to the appellant. The activities rendered by the appellants will be liable to service tax w.e.f. 01.07.2012 as has been held by the lower authority in the impugned orders. Consequently there is no ground at all to interfere with the findings of the lower authority in this regard. Remuneration paid by the appellant to its whole time Directors - levy of tax - whether the consideration paid to the full time Directors will be liable to service tax? - Held that - the appellant had not placed any record, or any documentary evidence before the Adjudicating Authority to support their claim that the Directors are paid employees of the company. However, they have attached copies of the Form-16 statement issued to the Directors for the Financial Year 2012-2013 and 2013-2014 and have claimed in appeal papers that the Directors are employees of the company. However, such documentary evidence was not submitted before the Adjudicating Authority - it is necessary to set aside the operation of the Order-in-Original only in respect of the demand of service tax on the amount paid to the Directors and remand the matter to the Adjudicating Authority to consider the documentary evidence produced by the appellant and re-decide the issue. Appeal allowed by way of remand.

Summary

Issues:
1. Whether services rendered to railways are exempt from service tax under Mega Exemption Notification No.25/2012-ST.
2. Whether remuneration paid to whole time Directors is liable to service tax.

Analysis:
1. The first issue revolves around services provided to railways by the appellant. The appellant claimed exemption under Sl.No.14 of the Mega Exemption Notification No.25/2012-ST. The notification exempts services related to construction, erection, commissioning, or installation of original works, including railways. However, the Tribunal found that the activities carried out by the appellant did not qualify as original works under the notification. The Tribunal noted that welding of railway tracks, though essential, did not fall within the definition of original works as specified in the notification. Consequently, the Tribunal upheld the levy of service tax on the services provided to railways from 01.07.2012 onwards.

2. The second issue pertains to the remuneration paid to whole time Directors of the appellant company. The appellant argued that the Directors were employees of the company, and therefore, the remuneration paid to them should not be subject to service tax. However, the Tribunal observed that the appellant failed to provide sufficient documentary evidence to establish the employee-employer relationship between the company and the Directors. While the appellant submitted Form-16 statements issued to the Directors, the Tribunal noted that this evidence was not presented before the Adjudicating Authority. Consequently, the Tribunal set aside the demand for service tax on the remuneration paid to the Directors and remanded the matter to the Adjudicating Authority for reevaluation based on the documentary evidence provided by the appellant.

In conclusion, the Tribunal upheld the demand for service tax on services rendered to railways but denied the exemption claimed under the Mega Exemption Notification. Regarding the remuneration paid to whole time Directors, the Tribunal remanded the matter for further consideration based on the documentary evidence provided by the appellant. The appeals were partially allowed with directions for denovo adjudication on the aspect of Directors' remuneration.