2014 (11) TMI 167 - AT - Service Tax

Tribunal Remands Case for Fresh Adjudication on Service Tax Dispute

M/s. Vadehra Builders Pvt. Ltd. Versus CST, New Delhi

M/s. Vadehra Builders Pvt. Ltd. Versus CST, New Delhi - 2015 (39) S.T.R. 88 (Tri. - Del.) Issues Involved:1. Denial of benefit under Notification No. 12/2003-ST.2. Eligibility for Notifications No. 15/2004-ST and No. 1/2006-ST.3. Suppression of facts and intention to evade service tax.4. Applicability of service tax on composite contracts prior to 01.06.2007.Detailed Analysis:1. Denial of Benefit under Notification No. 12/2003-ST:The appellants contended that they were eligible for the benefit under Notification No. 12/2003-ST, which exempts the value of goods and materials sold by the service provider to the recipient of service from service tax, provided there is documentary proof specifically indicating the value of the said goods and materials. The adjudicating authority denied this benefit, stating that the appellants did not provide such documentary proof. The Tribunal noted that the appellants had given overall values of goods and materials purchased but failed to show documentary evidence of goods and materials specifically sold to various service recipients. The Tribunal emphasized that mere plausible explanations or approximations are insufficient for the purpose of Notification No. 12/2003-ST. The case was remanded to the adjudicating authority to enable the appellants to produce the necessary documentary proof.2. Eligibility for Notifications No. 15/2004-ST and No. 1/2006-ST:The Show Cause Notice required the appellants to justify their claim for the benefits under Notifications No. 15/2004-ST and No. 1/2006-ST, which were not applicable to completion and finishing services. The appellants admitted during the investigation that they had claimed these benefits. The Tribunal upheld the adjudicating authority's decision to deny the benefits of these notifications, as the appellants did not contest their eligibility for these notifications during adjudication or in their appeal before CESTAT.3. Suppression of Facts and Intention to Evade Service Tax:The adjudicating authority found that the appellants had deliberately claimed the benefit of Notifications No. 15/2004-ST and No. 1/2006-ST, which were clearly not applicable to their services, and had not disclosed that the service for which the exemption was claimed was completion and finishing services. This was deemed as suppression of facts with the intention to evade service tax. The Tribunal agreed with this finding, stating that the appellants' actions clearly established suppression of facts. The judgments cited by the appellants did not help their case as they did not deal with a situation where the benefit of an exemption notification was claimed so blatantly to evade service tax.4. Applicability of Service Tax on Composite Contracts Prior to 01.06.2007:The appellants argued that their contracts, being composite contracts, were not liable to service tax prior to 01.06.2007 when works contract service was made taxable. The Tribunal rejected this contention, citing the judgment of the Hon'ble Delhi High Court in the case of G.D. Builders, which held that service tax can be levied on the service component of any contract involving service and goods, and the service element should be bifurcated and taxed. The Tribunal emphasized that the classification of service is determined as per the definitions of various taxable services prevalent during the relevant period, and the introduction of a new taxable service does not mean that the service was not taxable prior to that.Conclusion:The Tribunal set aside the impugned order and remanded the case for de novo adjudication to enable the appellants to produce documentary evidence required for the benefit of Notification No. 12/2003-ST. The adjudicating authority was directed to consider the appellants' submissions afresh regarding the admissibility of the benefit of Notification No. 12/2003-ST and re-determine the demand of service tax and penalties accordingly.