2015 (11) TMI 1487 - AT - Service Tax

Appellate Tribunal rules against Service Tax demand in construction business case

The Appellate Tribunal CESTAT AHMEDABAD set aside the demand for Service Tax, interest, and penalty related to the non-inclusion of material cost in the ... Business of commercial and industrial construction Service - benefit under the Notification No 12/2003-ST dated 20.6.2003 - Held that:- To safeguard the financial interest of the appellant, as a matter of precaution or as a matter of conservative policy, raised RA (Running Account) Bills to the customers charging Service Tax without claiming any abatement or other benefit in some cases and not in all cases. It is categorically stated that the fact remains that not a single customer has paid Service Tax at such higher or gross rates, i.e., without benefit of abatement etc. The appellant enclosed the statement with reply, marked Annexure BB giving details of Service Tax charged in the RA in respect of each party and the amount realised towards value of service and Service Tax from the party. The Learned Authorised Representative for Revenue drew the attention of the Bench the relevant portion of the Adjudication Order and submits that the appellant realised the tax on the gross value as revealed from the RA bills. - Impugned order is set aside - Matter remanded back - Decided in favour of assessee. Issues:1. Demand of Service Tax, interest, and penalty for the period from October 2004 to March 2009.2. Non-inclusion of material cost in the gross value of services provided.3. Wrong availment of benefit under Notification No 12/2003-ST.4. Non-payment of Service Tax on amounts not shown in ST3 returns.5. Collection of excess Service Tax not deposited with the Central Government.Analysis:Issue 1:The appellants, engaged in commercial and industrial construction, were issued a Show Cause Notice proposing demand of Service Tax, interest, and penalty for the period in question. The Adjudicating Authority confirmed the demand, leading to the appeal. The Tribunal found that the demand of Service Tax on the first issue, regarding non-inclusion of material cost in the gross value of services, could not be sustained based on a precedent favoring the assessee.Issue 2:The second issue pertained to the wrong availment of benefits under Notification No 12/2003-ST. The third issue involved non-payment of Service Tax on amounts not reflected in the ST3 returns. The appellant argued they were eligible for benefits under other notifications, which were not considered by the Adjudicating Authority. The Tribunal noted discrepancies in the appellant's billing practices, where they charged Service Tax without claiming abatement or other benefits in some cases. The matter was remanded for a fresh decision, emphasizing the need for a detailed examination of the appellant's submissions.Issue 3:Regarding the fourth issue of collecting excess Service Tax not deposited with the Central Government, the appellant acknowledged collecting excess amounts but disputed the quantification. The Tribunal observed that the Adjudicating Authority failed to provide findings on these issues and should have thoroughly examined the appellant's submissions and annexures before passing the Adjudication Order. Consequently, the demand for Service Tax, interest, and penalty on the first issue was set aside, and the matter was remanded for further consideration on the remaining issues, ensuring a proper opportunity for a hearing.This comprehensive analysis highlights the key legal aspects and decisions made by the Appellate Tribunal CESTAT AHMEDABAD in addressing the multiple issues raised in the case.