2020 (7) TMI 231 - AT - Service Tax

Works contract service - Commercial Construction or Industrial Service - period from September 2004 to September 2007 - HELD THAT - The issue is squarely covered by the Hon‟ble Supreme Court s decision in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS 2015 (8) TMI 749 - SUPREME COURT relied by the appellant wherein it has categorically been held that no service tax can be demanded on construction services prior to introduction of Works Contract Service in June 2007 wherein there is a supply of goods and service. The services provided by the appellant is a composite service involving supply of goods and not construction service simpliciter and hence, the same is legally classifiable under the category of Works Contact Service . Therefore, the assessee has rightly paid service tax under the said category effective from June 2007 which has also been appropriated in the impugned order and thus, the contention of the Revenue that tax on existing contracts prior to June 2007 could not be paid under Works Contact is not tenable. The demand raised in the impugned order under the category of Commercial Construction or Industrial Service cannot be sustained and hence, set aside - Interest and penalties are also set aside - appeal allowed - decided in favor of appellant.

Summary

Issues involved:
Appeal against demand of service tax under "Commercial Construction or Industrial Service" for the period from September 2004 to September 2007, interest under Section 75 of the Finance Act, 1994, and penalties under Sections 76, 77, and 78 of the Act.

Analysis:

1. Issue of Demand of Service Tax under "Commercial Construction or Industrial Service":
The appellant, engaged in commercial construction, was facing a demand for service tax under this category for the period from September 2004 to September 2007. The appellant had not deposited service tax and did not file returns for the mentioned period. The Show Cause Notice was issued, and the appellant had deposited service tax under "Works Contract Service" introduced in June 2007. The Department disputed the change in classification from "Commercial Construction or Industrial Service" to "Works Contract Services" for existing contracts. The Order-in-Original dated 16.10.2009 confirmed the demand, interest, and penalties. The appellant contended that the demand was not sustainable before June 2007, citing relevant legal precedents. The Tribunal found that the services provided by the appellant were legally classifiable under "Works Contract Service" from June 2007, involving a composite service of goods and service. Consequently, the demand under "Commercial Construction or Industrial Service" was set aside, and the appellant's appeal was allowed.

2. Issue of Legal Precedents and Classification of Services:
The appellant relied on legal precedents such as the Supreme Court's decision in the case of CCE, Kerala vs. Larsen & Toubro Ltd., and other tribunal decisions to support their argument that no service tax could be demanded on construction services before the introduction of "Works Contract Service" in June 2007. The Tribunal noted that the Supreme Court's decision in Larsen & Toubro case held that no service tax could be demanded on construction services before June 2007 when there was a supply of goods and service. The Tribunal further observed that the appellant's services involved a composite service of goods and service, making it legally classifiable under "Works Contract Service" from June 2007. This classification justified the appellant's payment of service tax under this category effective from June 2007 and rendered the Revenue's contention regarding tax on existing contracts prior to June 2007 being payable under "Works Contract Service" untenable.

3. Decision on Demand, Interest, and Penalties:
After considering the arguments and perusing the records, the Tribunal found that the demand raised under "Commercial Construction or Industrial Service" could not be sustained. Consequently, the demand, interest, and penalties imposed were set aside. The Tribunal allowed the appeal filed by the assessee, providing a detailed legal analysis and justification for their decision. The judgment was pronounced in open court on 02.07.2020 by the members of the Tribunal.