2020 (7) TMI 3 - AT - Service Tax

Classification of services - works contract services or not - appellants are concessionaire, who have been granted on Build, Operate and Transfer(BOT) basis, construction, maintenance on cost recovery basis - whether the construction of associated facilities like toll plaza, cattle and pedestrian crossing facilities, parking bays for buses/trucks and rest room for staff, etc. and common people, are part of the road (exempt) or are liable to service tax under the head works contract service ? HELD THAT - The construction like toll plaza, cattle/pedestrian crossing facilities, parking bay for buses/trucks, rest room for staff and common public at large, etc. are also part of the road, as these are meant for exclusive use by the highway staff and the people using these roads. Further we take notice of several judgments of the Tribunal wherein even greenery done in the middle of the road, by way of divider or on the side of the roads, as well as crash barriers erected on the side of the roads all form part of the road and not exigible to service tax - the appellant is entitled for the exemption under Section 65(105) (zzzza). Extended period of limitation - HELD THAT - The show-cause notice is bad for invocation of extended period of limitation as the same is issued merely on change of opinion on the part of the Revenue. Appeal allowed - decided in favor of appellant.

Summary

Issues involved:
Interpretation of service tax liability on construction activities associated with road development under BOT model, applicability of works contract service, consideration of concessionaire agreement clauses, relevance of turnkey projects, interpretation of Board circular, invocation of extended period of limitation.

Analysis:

1. Service Tax Liability on Construction Activities:
The issue revolved around determining whether the construction of associated facilities like toll plaza, cattle and pedestrian crossing facilities, parking bays, and restrooms as part of road development under a BOT model is exempt from service tax or falls under works contract service. The audit highlighted a substantial service tax liability under works contract service, triggering a demand by the department.

2. Appellant's Arguments and Legal References:
The appellant contended that the construction activities were integral to the road development project and should be considered exempt from service tax. Various legal references were cited, emphasizing that the construction of toll plazas and other facilities was essential for cost recovery and not a standalone taxable service. The appellant also argued against the invocation of extended period of limitation.

3. Department's Position and Legal Precedents:
The Revenue argued that the allied construction activities were taxable under works contract service, distinct from the road development work. The department supported its stance by citing the nature of the concessionaire agreement and the sub-contracting arrangements. Reference to a previous Tribunal decision regarding construction activities within a petrol pump further supported the department's position.

4. Tribunal's Decision and Rationale:
After considering both sides' contentions and reviewing the records, the Tribunal held that the construction of toll plazas and other associated facilities was integral to the road and thus exempt from service tax. The Tribunal emphasized that these constructions were meant for the exclusive use of highway staff and the public, aligning with previous rulings considering such constructions as part of the road. The Tribunal also deemed the show-cause notice invoking extended period of limitation as invalid due to being a mere change of opinion by the Revenue.

5. Conclusion and Outcome:
The Tribunal allowed the appeal, setting aside the impugned order and granting the appellant consequential benefits in accordance with the law. The judgment was pronounced in open court on a specified date, providing clarity on the service tax liability concerning construction activities associated with road development under a BOT model.