2023 (9) TMI 1192 - AT - Service Tax

Commercial and Industrial Construction service - benefit of the composition scheme denied solely on the ground that all the ongoing projects entered into before June 2007, for which the composition scheme was not available with the introduction of works contract service effect from 01.06.2007, was not justified - Time Limitation - HELD THAT - Admittedly, the appellant had undertaken construction of residential complex service on the strength of composite contracts entered into with its customers, which involved sale of goods i.e., construction materials, and also the service of construction. The Hon ble Apex Court in the case of Larsen Toubro Ltd. 2015 (8) TMI 749 - SUPREME COURT has in clear terms held that wherever works contract service is undertaken prior to 01.06.2007, involving contracts of composite nature, no demand under CICS or CRCS could survive, prior to 01.06.2007. Service Tax, admittedly, is a tax on the service part and definitely not on the entire value declared / collected and hence, at the outset, we do not appreciate the demand of Service tax on the gross value declared in the S.T.-3 return, which is also done rejecting the appellant s claim under works contract service, but not specifying as to under which service is the amount being charged to Service Tax. Time Limitation - HELD THAT - Though the appellant has also taken a ground as regards the demands in both the above Show Cause Notices being hit by the period of limitation, since the demands cannot be sustained the issue of limitation not discussed here. Appeal allowed.

Summary

Issues involved:
The issues involved in the judgment are related to the demand of tax under Section 67 of the Finance Act, 1994, alleged suppression of facts, application of composition scheme for works contract service, and the sustainability of the demands confirmed in the Orders-in-Original.

Issue 1: Demand of Tax and Alleged Suppression of Facts
The appellant, a construction services provider, faced doubts from the Department regarding advances received from clients, leading to Show Cause Notices alleging suppression of advance amounts and the value of goods supplied. Despite the appellant's responses denying the allegations, the Commissioner confirmed the demands under Sections 67, 75, 76, 77, and 78 of the Finance Act, 1994.

Issue 2: Application of Composition Scheme
The appellant contended that they had opted for the composition scheme for works contract service post the statutory inclusion of works contract service. The Revenue, however, demanded differential Service Tax on the taxable value, denying the composition scheme benefits for projects initiated before the scheme's availability, charging the full rate on gross income without abatement.

Issue 3: Sustainability of Demands
The Tribunal deliberated on the sustainability of the demands in light of legal precedents, including the case of Commissioner of Central Excise and Customs v. M/s. Larsen & Toubro Ltd. The Tribunal emphasized that demands under composite contracts pre-June 2007 involving works contract service were not tenable. Additionally, the Tribunal found fault with denying composition scheme benefits due to lack of proof of option exercise, highlighting that Service Tax should only apply to the service component, not the entire declared value.

The Tribunal, comprising Hon'ble Members P. Dinesha and M. Ajit Kumar, examined the appellant's appeal against Orders-in-Original confirming tax demands. The appellant's contentions regarding the composition scheme, sustainability of demands, and the applicability of legal precedents were considered. The Tribunal, referencing the case law of Larsen & Toubro Ltd., concluded that demands under composite contracts pre-June 2007 were unsustainable. The Tribunal set aside the demands and the impugned order, allowing the appeal with consequential benefits, if any, as per law.