2023 (5) TMI 246 - AT - Service Tax

Classification of services - composite works contract service or not - construction service / commercial or industrial construction service / works contract service and towards cleaning activity provided by the appellant - liability of service tax on cleaning activity - period from April 2005 to March 2009 - extended period of limitation - penalty - HELD THAT - The issue of taxability of composite contracts before 01.06.2007 has been considered by the Hon ble Apex Court in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS 2015 (8) TMI 749 - SUPREME COURT , which ratio has been followed by the Chennai Bench of the CESTAT in the case of REAL VALUE PROMOTERS PVT. LTD., CEEBROS PROPERTY DEVELOPMENT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST CENTRAL EXCISE, CHENNAI 2018 (9) TMI 1149 - CESTAT CHENNAI . In the case of M/s. Real Value Promoters Pvt. Ltd., it has been held that demand of Service Tax under construction service and commercial or industrial construction service in respect of composite contracts up to 01.06.2007 is not sustainable. The appellant has admitted that the services rendered by them are taxable under works contract service with effect from 01.06.2007 in the grounds-of-appeal and also before the lower authority. As the activities undertaken by the appellant were in the nature of works contract, the demands raised under construction service and commercial or industrial construction service till 31.05.2007 are not sustainable - the appellant is required to pay Service Tax of Rs.7,94,122/-, as indicated in the letter extracted hereinabove, towards works contract service during the period from 01.06.2007 to March 2009 and towards the cleaning activity undertaken by them during the period from April 2005 to March 2009. Extended period of limitation - HELD THAT - The appellant has not taken registration, and have not paid Service Tax on the considerations received for the services rendered to M/s. BSNL, CPWD, National Institute of Technology, etc. The non-payment of Service Tax by the appellant has been detected and investigated by the Anti-evasion Unit of the Commissionerate and as such, the extended period has been rightly invoked in this case. Thus, the demand of Service Tax from April 2005 up to 31.05.2007 under construction service and commercial or industrial construction service are required to be set aside. However, the demand of Service Tax under works contract service with effect from 01.06.2007 is held to be payable under the provisions of Section 73(1) of the Finance Act, 1994, along with applicable interest under Section 75 of the Finance Act, 1994 - the appellant is liable to pay penalty of Rs.5,000/-, as imposed under Section 77 of the Finance Act, 1994 and penalty equivalent to the amount of Service Tax payable towards works contract service and cleaning activity, under Section 78 of the Act - appeal allowed in part.

Summary

Issues Involved:
1. Taxability of services under different categories before and after 01.06.2007.
2. Liability to pay Service Tax for cleaning activities.
3. Justification for invoking the extended period of limitation and imposition of penalties.

Summary:

1. Taxability of Services:
The appellant, a civil contractor, was alleged to have provided construction services without registering or paying Service Tax from April 2005 to March 2009. The Joint Commissioner categorized the services under 'construction service' from April 2005, 'commercial or industrial construction service' from 16.06.2005, and 'works contract service' from 01.06.2007. The appellant argued that the services should only be taxed under 'works contract service' from 01.06.2007, citing that composite contracts cannot be split into different service categories before this date. The Tribunal referred to the Supreme Court's decision in M/s. Larsen & Toubro Ltd. and other relevant cases, concluding that composite contracts involving transfer of property in goods could not be taxed under 'construction service' or 'commercial or industrial construction service' before 01.06.2007. Therefore, the demand for Service Tax under these categories up to 31.05.2007 was set aside. However, the appellant was held liable to pay Service Tax under 'works contract service' from 01.06.2007.

2. Liability for Cleaning Activities:
The Tribunal confirmed that the appellant was liable to pay Service Tax for cleaning activities provided during the period from April 2005 to March 2009.

3. Extended Period of Limitation and Penalties:
The Tribunal upheld the invocation of the extended period of limitation, noting that the appellant had not registered or paid Service Tax, and the non-payment was detected through investigation. Consequently, the appellant was held liable to pay penalties under Sections 77 and 78 of the Finance Act, 1994.

Conclusion:
The appeal was partly allowed. The demand for Service Tax under 'construction service' and 'commercial or industrial construction service' up to 31.05.2007 was set aside, but the appellant was liable to pay Service Tax under 'works contract service' from 01.06.2007 and for cleaning activities, along with applicable interest and penalties.