2019 (2) TMI 485 - AT - Service Tax

Construction of complex (residential) service - the appellant had constructed 39 flats to service recipients and had received an amount of ₹ 1,55,60,500/- from them and had not discharged the service tax liability on such receipts - CBEC Circular No. 108/2/2009-ST, dt. 29.01.2009 - Held that - Service Tax is leviable only when the service is rendered by one person to another for a consideration. If the appellant had, in fact, constructed all the flats with their own money and thereafter sold these flats to their customers, then evidently no service has been rendered and no service tax is payable - These facts will be evident only in the records of the original adjudicating authority who investigated the case. It is a fit case to be remanded back to the original adjudicating authority to consider the submission of the appellant in their appeal before this Tribunal that they had constructed the flats with their own money and only thereafter sold them to their customers and therefore were exempted from payment of service tax in terms of CBEC circular dated 29.01.2009. The matter back to the original authority to consider this claim of the appellant and after following principles of natural justice - Appeal allowed by way of remand.

Summary

Issues:
1. Appellant's liability to pay service tax for construction of flats.
2. Interpretation of service tax laws regarding self-service and sale to customers.
3. Revision of order by Commissioner enhancing service tax demand, interest, and penalties.
4. Claim for setting aside service tax, interest, and penalties by the appellant.
5. Lack of clarity on whether the appellant constructed flats with their own funds.
6. Need for remand to original adjudicating authority for further consideration.

Analysis:
1. The appellants were registered for service tax under "Construction of complex (residential) service" and paid tax for a period. The department found they had constructed flats and received payments without discharging service tax liability, leading to a demand notice. The Assistant Commissioner confirmed a lower tax liability, refraining from imposing penalties. However, the Commissioner revised the order, enhancing the demand, interest, and imposing penalties under the Finance Act, 1994.

2. The appeal challenged the Commissioner's revision, claiming exemption from service tax as they contended they paid for the construction with their own funds and only sold the flats. The argument was based on the interpretation that no service was rendered, citing a CBEC Circular. The Bench noted the lack of clarity on whether the appellants indeed used their funds for construction, a crucial factor in determining service tax liability.

3. The Tribunal emphasized that service tax is applicable when a service is rendered for consideration. The decision hinges on whether the appellants provided a service by constructing flats for customers after receiving payments. Due to insufficient details, the Tribunal remanded the case to the original authority to evaluate the appellant's claim and make a determination based on the principles of natural justice.

4. Without delving into the merits, the Tribunal remitted the matter back for a fresh decision, leaving all issues open for the original authority to reconsider. The appeal was disposed of by remand to the original adjudicating authority for further examination and a new order following due process.