Commissioner (Appeals) grants relief on service tax issue, Tribunal rules on drive way construction exemption

The Commissioner (Appeals) agreed with the appellant's contentions regarding the quantification of service tax, directing a reverse calculation as per Section 67(2) of the Act due to errors in tax calculation. On the issue of liability for service tax on the drive way construction at the petrol pump, the Tribunal found in favor of the appellant, stating that the drive way was not taxable as it was part of the commercial complex and supported by details in the Work Order. The matter was remanded for a reasoned order on the gross amount taxable and penalties under Section 78. The appellant was instructed to appear before the adjudicating authority for further proceedings.

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Issues:
1. Quantification of service tax by the Commissioner (Appeals)
2. Liability of the appellant to pay service tax on the construction of a drive way at the petrol pump

Issue 1: Quantification of Service Tax
The case involved a dispute over the correct quantification of service tax by the Commissioner (Appeals). The appellant contested a show cause notice demanding service tax for a specific period, arguing that the figures supplied by IOCL were incorrect. The Commissioner (Appeals) acknowledged errors in the tax calculation, noting discrepancies in the amounts mentioned against various Purchase Orders (P.O.s). The appellant also argued that they had not received the service tax component from the service recipient, invoking Section 67(2) of the Act for determining the taxable value. The Commissioner (Appeals) agreed with the appellant's contentions, directing a reverse calculation as per Section 67(2) of the Act.

Issue 2: Liability for Service Tax on Drive Way Construction
Regarding the liability of the appellant to pay service tax on the construction of a drive way at the petrol pump, the Commissioner (Appeals) held that the drive way was not a public road but a part of the commercial complex, making it taxable. However, the Tribunal referred to a C.B.E.C. clarification stating that the benefit of a drive way in a commercial complex should be allowed if recognized separately in the contract. The Tribunal found details in the Work Order supporting the construction of the drive way, leading to the conclusion that the appellant was not liable to pay service tax for the drive way construction. The matter of gross amount taxable and the tax payable was remanded to the adjudicating authority for a reasoned order in accordance with law, with modifications to penalties under Section 78. The appellant was directed to appear before the adjudicating authority within a specified period for further proceedings.

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