2017 (7) TMI 344 - AT - Service Tax

Tribunal rules in favor of appellant on service tax liability for construction services

M/s Mangesh Engineering Versus Commissioner of Central Excise, Pune-I

The Tribunal ruled in favor of the appellant, M/s Mangesh Engineering, in a case concerning the liability of service tax on commercial or industrial ... Abatement of value of material - N/N. 12/2003-ST dated 20th June 2003, as amended by N/N. 12/2004-ST dated 10th September 2004 - Held that: - reliance placed in the case of Sobha Developers Ltd. Versus Commissioner of Central Excise and Service Tax, Bangalore [2009 (9) TMI 342 - CESTAT, BANGALORE], where it was held that the decision of the commissioner to collect service tax on the value on which the assessee had already paid State Vat was contrary to the principal of fiscal federalism adopted in the constitution. Thus the demand is not sustainable - the appellant had discharged VAT on the materials supplied in those composite contracts undertaken by them. The decision of the Tribunal is unambiguously clear that discharge of VAT liability would preclude the levy of service tax on the value of those goods - appeal allowed - decided in favor of appellant. Issues: Liability of service tax on commercial or industrial construction service, eligibility for abatement of value of material, compliance with CENVAT credit condition.Analysis:1. Liability of Service Tax: The case involved M/s Mangesh Engineering, engaged in erecting and installing pre-engineered buildings. The jurisdictional service tax authorities imposed a liability of Rs. 5,29,395 for short-levied tax on commercial or industrial construction service due to not including the value of materials in the taxable service. The appellant argued that they billed separately for materials supplied and services rendered, discharging appropriate tax on services and subjecting materials to VAT under state statutes.2. Abatement of Value of Material: The appellant contended that since they had reversed CENVAT credit on materials used, adding the value of materials was redundant. They claimed entitlement to abatement under notification no.12/2003-ST, as amended, despite not complying with the CENVAT credit condition. The Tribunal referred to a previous case to establish that VAT payment on materials supplied in composite contracts exempted them from service tax on those goods.3. Compliance with CENVAT Credit: The Tribunal considered the appellant's VAT payments on materials in composite contracts, which, according to a previous decision, negated the need for service tax on those materials. The Tribunal emphasized the mutual exclusivity of service tax and sales tax, citing a Supreme Court ruling that collecting service tax on materials already subject to state VAT was against the principles of fiscal federalism. As the appellant had discharged VAT on materials, the Tribunal found the service tax demand unsustainable and set aside the impugned order.4. Judicial Precedents: The Tribunal referenced decisions by the Hon'ble Supreme Court and the Hon'ble High Court of Bombay to support its ruling. The Supreme Court upheld a previous Tribunal decision that VAT payment on materials in composite contracts exempted them from service tax. The High Court's decision related to an exemption notification for manufacturers, emphasizing the importance of non-availment of CENVAT credit, a condition the appellant had met by reversing the credit in advance.5. Conclusion: The Tribunal found in favor of the appellant, setting aside the demand for service tax on materials supplied in composite contracts where VAT had already been paid. The ruling highlighted the importance of VAT payment as a factor in determining the applicability of service tax on materials. The decision emphasized the legal principles of fiscal federalism and the exclusivity of taxation powers between states and the center.