2017 (11) TMI 941 - AT - Service Tax

Valuation - Abatement - Erection, Commissioning or Installation Services - on-going contracts, at the time of introduction of new tax entry as Works Contract Service w.e.f. 1.6.2007 - Held that - the tax liability of appellant for the period 1.6.2007 will not arise in case of works contract. For the period post-1.6.2007, necessarily the tax liability is determined belatedly under works contract service. Hence the question of option has no relevance as neither appellant nor the Revenue classified the service at the material time under Works Contract Service . The availability of composition scheme as per 2007 Rules are to be examined. The claim of the appellant that they have discharged more than the required tax on these services even if the claim of the department is taken into consideration for treating the contracts as a whole, requires re-examination - appeal allowed by way of remand.

Summary

Issues:
Correct service tax liability on construction, erection, and commissioning contracts; Dispute regarding abatements claimed by the appellant; Denial of composition scheme for works contract service; Imposition of penalties on the appellant.

Analysis:
The judgment by the Appellate Tribunal CESTAT Chennai involved a dispute over the correct service tax liability of the appellant concerning construction, erection, and commissioning contracts. The appellant had been discharging service tax based on their understanding of the contracts, categorizing them under different tax entries. The Revenue contended that all contracts should be categorized under "Erection, Commissioning or Installation Services," denying the abatements claimed by the appellant and imposing penalties.

In the arguments presented, the appellant's counsel highlighted that they had discharged service tax as per their understanding, following a methodology that resulted in higher tax payments than if the liability was calculated from a later date. They also referred to a Supreme Court ruling regarding composite works contracts and the composition scheme for works contract services introduced in 2007.

On the other hand, the Revenue argued that the contracts were predominantly for erection, commissioning, or installation services, and the appellant's attempt to split them into construction and erection was impermissible. They also contended that the appellant was not eligible for abatements or the composition scheme under the 2007 Rules.

The Tribunal, after hearing both sides, noted that the dispute related to contracts ongoing at the introduction of the new tax entry as "Works Contract Service" in 2007. It emphasized the need to establish the nature of the contracts to determine the correct tax liability, especially in cases involving supply of materials. The Tribunal found that the Revenue's approach of combining separate agreements into a single category was not sustainable.

Regarding the quantification of liability, the Tribunal held that if the contracts were considered works contracts, the liability would only arise from 1.6.2007. It also ruled that the denial of the composition scheme could not be based solely on the lack of option exercise during the relevant period. The Tribunal distinguished the present case from the precedent cited by the Revenue and emphasized the need to examine the availability of the composition scheme under the 2007 Rules.

In conclusion, the Tribunal set aside the impugned orders and remanded the matter to the original authority for a fresh decision. It kept all issues open and directed that the appellant be given adequate opportunity to present their case before a final decision is made. The appeals were remanded accordingly.