2017 (1) TMI 377 - AT - Service Tax

Tribunal remands case for re-quantification of demand, rejects limitation plea, and agrees with Department on Works Contract Composition Scheme

The Tribunal remanded the case for re-quantification of the demand based on the observations, disposing of the appeal. The appellant's plea of limitation ... Composite works contract - construction contract - time limitation - Held that: - the issue of leviability of service tax on such works contract is decided by Hon’ble Supreme Court in the Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] case. In line with the categorical decision of the Apex court, the demand for service tax cannot survive upto 31/03/2007. For the period w.e.f. 01/06/2007, the activities of the appellant would be covered under Works Contract Services - taking a final view about the grant of the benefit of the composition scheme, the relevant contracts executed by the appellant would need to be gone into. For this purpose, we consider it necessary to remand the matter to the original Adjudicating Authority who will re-decide the matter - matter on remand. Extended period of limitation - Held that: - The appellant have also received payments to the tune of ₹ 48 lakhs in 2006-2007 and ₹ 49 lakhs in 2007-2008 on which service tax liability arises. However, they have failed to file ST-3 returns nor obtained service tax registration. But for the fact that the Department noticed such activity from the service recipient, the liability for payment of service tax would have gone unnoticed. Hence, we have no hesitation to hold that the appellant has suppressed the material facts from the Department - extended period of limitation rightly imposed. Appeal disposed off - matter on remand. Issues involved:1. Taxability of services provided by the appellant under manpower recruitment agency and construction service categories.2. Applicability of service tax demand for the period 2006-2008.3. Benefit of Works Contract Composition Scheme.4. Plea of limitation raised by the appellant.Analysis:1. The appellant was engaged in providing services under manpower recruitment agency and construction service categories. The dispute arose when the Department issued a show cause notice for demand of service tax after auditing the records of a service recipient. The Original Authority confirmed the demand of service tax, which was upheld by the Commissioner (Appeals), leading to the present appeal.2. The appellant argued that the activity in question involved construction services, citing the decision of the Hon'ble Supreme Court in a relevant case. The Apex court had ruled that composite works contracts could not be charged to service tax before a specific date. The appellant sought the benefit of limitation for the period post that date. The Department agreed that the activity fell under Works Contract Services but opposed the plea of limitation and the extension of Works Contracts Composition Scheme benefit.3. The Tribunal acknowledged that the disputed contracts involved construction services, and as per the Supreme Court's decision, the demand for service tax could not be sustained before a certain date. For the period after that date, the activities of the appellant would fall under Works Contract Services. The Tribunal agreed with the Department's stance on not extending the benefit of the Works Contract Composition Scheme without examining the relevant contracts. Therefore, the matter was remanded to the original Adjudicating Authority for further consideration.4. Regarding the plea of limitation raised by the appellant, the Tribunal noted that a significant portion of the demand fell beyond the normal period of limitation. The Department had discovered the service rendered by the appellant during an audit of the service recipient's records. The appellant had received payments that attracted service tax liability but had failed to file returns or obtain service tax registration. The Tribunal held that the appellant had suppressed material facts from the Department, justifying the invocation of the extended period of limitation.In conclusion, the Tribunal remanded the matter for re-quantification of the demand based on the observations made, disposing of the appeal accordingly.