2019 (5) TMI 376 - AT - Service Tax

Tribunal decision on service tax demands and penalties for various services.

The Tribunal set aside the demand for service tax under Commercial or Industrial Construction Service, Works Contract Service, Site Formation and ... Commercial or Industrial Construction Service - Works Contract Service for construction of railway sidings/tracks - composite contracts - demand of service tax - period from October 2004 to June 2007 - demand of interest on amount collected as service tax but not deposited - HELD THAT:- The execution of works in respect of roads, Airports, Railways, Transport Terminals, bridges, tunnels, dams and ports are excluded from the purview of levy of the said category of service. The department relies upon the definition of Railways contained in Section 2(31) of the Railways Act 1989. It has to be mentioned that the definition of the services in Section 65(25b) or Section 65(105)(zzzza) does not make any differentiation between a Government railway or a non government railway. These sections merely uses the word ‘railways’. The Railways Act defines government railway under section 2(20). Government railway ‘means a railway owned by the Central Government’. Section 2(25) of the Act defines a ‘non-governmental railway’. It means a railway other than a Government railway. The definition of Commercial or Industrial Construction Service and Works Contract Service contained in Section 65(25b) or Section 65(105)(zzzza) does not state that only these airports, railways, bridges, tunnels owned by government are excluded. In the case of INTERNATIONAL METRO CIVIL CONTRACTORS VERSUS C.S.T. -SERVICE TAX - DELHI [2018 (9) TMI 1073 - CESTAT NEW DELHI], the Tribunal has observed that the works of civil engineering contraction, mechanical and electrical installation, tunnel ventilation and station air conditioning etc. had been in relation to the construction of Delhi Metro Rail Corporation, was not liable to tax. The Tribunal in various decisions has held that Section 65(25b) or Section 65(105)(zzzza) of the Finance Act, 1994 does not use the word ‘railways’ for public carriage or that the railways should be government railways. The definition uses the words “railways” only. Therefore, the execution cannot be restricted to the government railways which are used for public transport of passengers or goods. The demand of service tax under Commercial or Industrial Construction Service or Works Contract Service for the period from October 2004 to June 2007 and August 2007 to October 2009 respectively for construction of railway sidings/tracks cannot sustain and require to be set aside. Demand of Interest - HELD THAT:- Section 73B does not provide for demand of interest in case of any amount collected which is not required to be collected as service tax from any other person as provided in sub clause (2) of Section 73B - the demand of interest in respect of the amounts collected under Commercial or Industrial Construction Service/Works Contract Service and Site Formation and Clearance Service cannot sustain and require to be set aside. Imposition of penalty - HELD THAT:- The appellant has put forward the reasonable cause for failure to pay service tax - it is a fit case to invoke Section 80 of the Act ibid - penalties set aside. Appeal allowed in part. Issues Involved:1. Demand of service tax under Commercial or Industrial Construction Service and Works Contract Service.2. Demand of service tax under Consulting Engineer Service.3. Demand of service tax under Maintenance or Repair Service.4. Demand of service tax under Site Formation and Clearance Service.5. Demand of service tax under Business Auxiliary Service.6. Demand of service tax collected and not paid under Section 73A.7. Demand of interest under Section 73B.8. Imposition of penalties.Issue-wise Detailed Analysis:1. Demand of Service Tax under Commercial or Industrial Construction Service and Works Contract Service:The appellant argued that construction of railway sidings/tracks is excluded from service tax as per Section 65(25b) and Section 65(105)(zzzza) of the Finance Act, 1994. The Tribunal agreed, citing precedents like Afcons Infrastructure Limited and SMS Infrastructure Limited, which held that construction activities related to railways, including private railway sidings, are excluded from the service tax ambit. The Tribunal noted that the definitions do not differentiate between government and non-government railways. Therefore, the demand for service tax under these categories for the period from October 2004 to June 2007 and August 2007 to October 2009 was set aside.2. Demand of Service Tax under Consulting Engineer Service:The appellant claimed that services provided in relation to railway sidings were not taxable and that they were under a bona fide belief that such services were excluded. However, the Tribunal found no exclusion in the definition of Consulting Engineer Service for services rendered in respect of railways. Thus, the demand for service tax under this category was upheld.3. Demand of Service Tax under Maintenance or Repair Service:Similar to the Consulting Engineer Service, the appellant argued that maintenance services related to railway sidings were not taxable. The Tribunal found no exclusion in the definition of Maintenance or Repair Service for railway-related services. Therefore, the demand under this category was upheld.4. Demand of Service Tax under Site Formation and Clearance Service:The appellant relied on Notification No. 17/2005-ST, which exempts site formation activities carried out in the course of construction of railways from service tax. The Tribunal agreed, noting that the notification exempts such activities. Consequently, the demand under this category was set aside.5. Demand of Service Tax under Business Auxiliary Service:The appellant argued that supervision activities for site formation and earthwork do not fall under Business Auxiliary Service. The Tribunal agreed, stating that the show cause notice did not specify the clause under which the service was proposed to be taxed and that supervision services cannot be classified as Customer Care services. Therefore, the demand under this category was set aside.6. Demand of Service Tax Collected and Not Paid under Section 73A:The appellant had collected Rs. 3,88,63,535 as service tax but failed to deposit it with the government. The Tribunal upheld the demand under Section 73A, noting that any amount collected as service tax must be deposited with the government.7. Demand of Interest under Section 73B:The appellant argued that interest under Section 73B is not applicable for amounts collected under Commercial or Industrial Construction Service, Works Contract Service, and Site Formation Service. The Tribunal agreed, citing that Section 73B does not provide for interest on amounts collected but not required to be collected as service tax. Therefore, the demand for interest under Section 73B was set aside.8. Imposition of Penalties:The Tribunal considered the appellant's argument that they were under a bona fide belief that the services were not taxable and invoked Section 80 of the Finance Act, 1994 to set aside the penalties imposed under Consulting Engineer Service and Maintenance or Repair Service.Conclusion:The Tribunal's order was modified as follows:(a) The demand of service tax under Commercial or Industrial Construction Service, Works Contract Service, Site Formation and Clearance Service, and Business Auxiliary Service was set aside.(b) The demand of service tax under Consulting Engineering Services and Maintenance or Repair Services along with interest was upheld.(c) The penalties imposed in respect of these two services were set aside.(d) The demand of service tax collected and not paid under Section 73A to the tune of Rs. 3,88,63,535 was upheld. However, the demand for interest under Section 73B was set aside.The appeal was partly allowed with consequential reliefs, if any.