2024 (12) TMI 599 - AT - Service Tax

Classification of services provided to Dakshinanchal Vidyut Vitran Nigam Ltd (DVVNL) as Work Contract Services - benefit of composition scheme - reverse charge mechanism - penalty u/s 78 of FA - HELD THAT - The issue is well settled that said service is to be treated as a work contract services. In case of Agrawal Colour Advance Photo System 2020 (4) TMI 799 - MADHYA PRADESH HIGH COURT the Hon ble Madhya Pradesh High Court has held that ' In this view of the matter, after the 46th Amendment, there is no question of dominant nature test applying in photography service and the works contract, which is covered by Clause (29A) of Article 366 of the Constitution where the element of goods can be separated, such contracts can be subjected to sales tax by the States under Entry 54 of List II of Schedule II. Once that is so, value of photographic paper and consumables cannot be included in the value of photography service for the purposes of imposition of service tax.' The services provided by the appellant to DVVNL are in nature of Work Contract Services and should be assessed accordingly, by allowing the benefit of composition scheme and partial reverse charge as per Notification No 30/2012-ST. The demand made needs to be recomputed by treating the services provided to DVVNL as work contract service. For limited purpose of re-computation of demand matter is remanded back to the original authority. The penalty imposed under section 78 is also set aside, to be recomputed after re-computation of the demand. Appeal partially allowed and the matter remanded to original authority for re-computation of demand and penalty under Section 78.

Summary

Issues Involved:

1. Confirmation and reduction of service tax demand and penalties.
2. Classification of services provided to Dakshinanchal Vidyut Vitran Nigam Ltd (DVVNL) as "Work Contract Services".
3. Applicability of exemptions and composition scheme under service tax laws.

Detailed Analysis:

1. Confirmation and Reduction of Service Tax Demand and Penalties:

The appeal challenged the order of the Commissioner (Appeals) which modified an earlier adjudication order. The Commissioner (Appeals) reduced the confirmed demand of service tax to Rs. 21,75,673 along with interest and reduced the penalty under Section 78 of the Finance Act, 1994 to the same amount. The penalty under Section 77(1)(d) remained unchanged at Rs. 10,000, while the penalty for non-furnishing of records and late filing of ST-3 returns was set aside. The appellant had initially been charged with a higher amount of service tax based on discrepancies between their financial records and service tax returns, leading to a short payment of Rs. 21,75,673. The penalties were imposed due to non-compliance with service tax regulations, including failure to furnish required documents and non-electronic payment of service tax.

2. Classification of Services Provided to DVVNL as "Work Contract Services":

The appellant argued that the services provided to DVVNL should be classified as "Work Contract Services" because certain goods were consumed, and their property transferred to the service recipient. The impugned order acknowledged that goods such as paint and welding materials were consumed, which supports the classification as work contract services. The appellant contended that under this classification, they were eligible for the composition scheme, reducing their service tax liability by 50%, with the remainder payable by the service recipient under the reverse charge mechanism. The tribunal agreed with this classification, referencing legal precedents that support the separation of goods and services in a work contract for tax purposes.

3. Applicability of Exemptions and Composition Scheme:

The appellant claimed eligibility for exemptions under the mega exemption notification No. 25/2012-ST, citing that services provided to M/s Ramky Infrastructure were indirectly for governmental purposes. However, the tribunal found that the exemptions did not apply as the services were not directly provided to a government or local authority. The tribunal emphasized that without proper documentation, such as work orders or contracts, the appellant's claim for exemptions could not be substantiated. Despite this, the tribunal recognized the classification of services to DVVNL under the work contract category, allowing for the benefit of the composition scheme and partial reverse charge mechanism under Notification No. 30/2012-ST.

Conclusion:

The appeal was partially allowed, with the tribunal remanding the matter back to the original authority for re-computation of the demand and penalty under Section 78, based on the classification of services to DVVNL as work contract services. The tribunal emphasized the need for the original authority to conclude the remand proceedings within three months, considering the age of the matter. Other parts of the impugned order that were not challenged were upheld.