2017 (10) TMI 404 - AT - Service Tax

Tribunal Partially Allows Appeal, Clarifies Tax Classification & Penalty Rules

D.V. Patel & Company Versus Commissioner of Central Excise, Nagpur

D.V. Patel & Company Versus Commissioner of Central Excise, Nagpur - TMI Issues Involved:1. Classification of services as works contract.2. Non-inclusion of material supplied by service recipient in assessable value.3. Nature of construction for Municipal Council and PWD.4. Classification of repairs to bridges and Government Engineering College.5. Classification of construction of artificial testing track.6. Taxability of construction of residential complexes.7. Invocation of extended period of limitation and imposition of penalties.Issue-Wise Detailed Analysis:1. Classification of Services as Works Contract:The appellant argued that many contracts, such as the construction of a coal washery and administrative buildings, included materials and thus should be classified as works contracts. The tribunal agreed, referencing the Hon'ble Apex Court case of Larsen & Toubro Ltd., stating that services provided before the introduction of works contract service cannot be taxed.2. Non-Inclusion of Material Supplied by Service Recipient in Assessable Value:The tribunal referenced the Larger Bench decision in M/s. Bhayana Builders (P) Ltd. vs. CST, Delhi, which held that the value of free supply material cannot be included in the assessable value for service tax purposes. The tribunal set aside the findings that included these materials in the assessable value.3. Nature of Construction for Municipal Council and PWD:The tribunal found that the Commissioner did not provide a clear rationale for classifying the Multipurpose Hall and Library Building for PWD as commercial. Certificates from the Municipal Council and Sub Divisional Engineer indicated that these buildings were for non-commercial use. Thus, no service tax could be demanded under commercial and industrial construction service.4. Classification of Repairs to Bridges and Government Engineering College:The tribunal noted that repairs to bridges and the Government Engineering College could not be classified under commercial and industrial construction service. However, these services were taxable under management, maintenance, or repair services. The tribunal referenced Notification No. 54/2010-ST, which exempts repairs to roads, tunnels, and bridges, thus setting aside the demand for repairs to bridges.5. Classification of Construction of Artificial Testing Track:The tribunal disagreed with the Commissioner’s classification of the testing track as not being a road. It held that the testing track, despite its specialized features, is a road and thus exempt from service tax under commercial and industrial construction service.6. Taxability of Construction of Residential Complexes:The appellant argued that the construction of residential complexes for entities like Western Coalfields Limited and Nagpur Housing and Area Development Board was for personal use and thus not taxable. The tribunal agreed, citing the Tribunal's decision in Sima Engg. Constructions vs. Commissioner of C. Ex., Trichy, which held that such constructions for personal use are excluded from the definition of construction of complex services.7. Invocation of Extended Period of Limitation and Imposition of Penalties:The tribunal upheld the invocation of the extended period of limitation and the imposition of penalties under Sections 77 and 78, noting that the appellant, being a large company, should have been aware of the service tax laws and could not plead ignorance.Conclusion:The appeal was partly allowed, with the tribunal remanding the matter to the original adjudicating authority for the quantification of duty and redetermination of penalty under Section 78.