2019 (4) TMI 242 - AT - Service Tax

Tribunal exempts construction services from Service Tax under Works Contract, dismissing Department's contentions.

The Tribunal allowed the appeal, determining that the services rendered by the appellants were covered under Works Contract and exempt from Service Tax ... Management Maintenance or Repair Services - services of construction of roads and clearing and cooling pond materials - non-payment of service tax - January 2006 to September 2006 - N/N. 25/2012-ST dated 20.06.2012 - Held that:- Notification mentiones that the road should be for use by general public whereas Section 97 does not mention any such condition. The Notification cannot go beyond the statute and in case of a difference; statute shall prevail over the Notification. Moreover the work undertaken by the appellant comes under the category of Works Contract and therefore is not taxable before 01.06.2007. Clearing of cooling pond materials undertaken by the appellants - Held that:- The work order was for 10,000 Cu.M @ 180 per Cu.M. Therefore, this work also comes under the ambit of Works Contract and therefore not chargeable Service Tax before 01.06.2007. In view of this the other submissions of the appellants that they come under transportation service and that VAT has been paid on the work undertaken for clearing of cooling pond become redundant - Appeal allowed. Issues:1. Whether the services rendered by the appellants are chargeable under Management Maintenance or Repair Services and liable for Service Tax.2. Whether the exemption under Section 97 of the Finance Act, 1994 applies to the construction of roads undertaken by the appellants.3. Whether the nature of work related to clearing of cooling pond materials falls under Works Contract and is exempt from Service Tax.4. Whether the road built or maintained by the appellants should be for use by the general public to avail exemption under Notification No. 25/2012-ST.Analysis:1. The appellants were issued a Show Cause Notice (SCN) for allegedly rendering services of construction of roads and clearing cooling pond materials chargeable under Management Maintenance or Repair Services to a company. The appellants argued that the construction of roads was exempted under Section 97 of the Finance Act, 1994, and the work related to clearing cooling pond materials was in the nature of Works Contract not liable for Service Tax.2. The appellants contended that the construction of roads was exempted under Section 97 of the Finance Act, 1994, and cited a Supreme Court decision to support their claim. The Tribunal found that the work awarded to the appellants was a works contract and covered by the Supreme Court decision, rejecting the Department's argument based on a High Court case.3. Regarding the clearing of cooling pond materials, the appellants argued that the work constituted a Works Contract and was not taxable before a specific date. The Tribunal examined the work order and concluded that it indeed fell under Works Contract, making the Service Tax not applicable before the specified date.4. The Department argued that the road should be for use by the general public to avail exemption under a specific notification. However, the Tribunal held that the special provision of Section 97 did not impose such a condition, and the Works Contract nature of the appellants' work made them eligible for exemption from Service Tax before the specified date.In conclusion, the Tribunal allowed the appeal, emphasizing that the works undertaken by the appellants were covered under Works Contract and exempt from Service Tax before the specified date, dismissing the Department's contentions.