2021 (2) TMI 116 - AT - Service Tax

Appellant's Construction Contract Reclassified, Service Tax Demand Set Aside

The Tribunal held that the appellant's composite construction services contract with Gautami should be classified as a 'works contract' from June 1, 2007, ... Works Contract - commercial or industrial construction service - Audit of the records of the appellant revealed that it had utilized CENVAT credit against payment of service tax on CICS even though benefit of abatement of 67% under the notification was admissible only when the service provider did not avail credit of input, input services or capital goods - HELD THAT:- It would be necessary to refer to the agreement executed between the appellant and Gautami, for that would determine whether it was a composite contract imposing goods and service - the provisions of the agreement clearly demonstrates that the contract was composite in nature involving both supply of goods/materials and provisions of services to Gautami. Such composite contracts are taxable under the category of “works contract” w.e.f June 1, 2007. The period of dispute in the present appeal is from April 1, 2006 to October 31, 2007. Thus, the appellant was not required to pay service tax for any period prior to June 1, 2007. Even for the period post June 1, 2007, service tax could not be demanded under CICS, as the service was classifiable under “works contract”. The confirmation of demand under the impugned order cannot be sustained - Appeal allowed - decided in favor of appellant. Issues:- Classification of services under 'commercial or industrial construction service' and 'works contract'- Admissibility of abatement under Notification dated March 1, 2006- Utilization of CENVAT credit for payment of service tax- Interpretation of the agreement between the parties- Applicability of service tax under different categoriesClassification of services under 'commercial or industrial construction service' and 'works contract':The appellant, engaged in construction services, claimed to be providing composite services involving goods and services under an agreement with Gautami. The Tribunal held that such composite contracts are taxable under the category of 'works contract' from June 1, 2007. As the period in question was from April 1, 2006, to October 31, 2007, the appellant was not liable to pay service tax under 'commercial or industrial construction service' before June 1, 2007. The Tribunal found that the contract was indeed composite in nature, involving both goods/materials and services to Gautami, thus classifying it under 'works contract.'Admissibility of abatement under Notification dated March 1, 2006:The appellant availed abatement of 67% under the Notification dated March 1, 2006, by utilizing CENVAT credit for payment of service tax on 'commercial or industrial construction service.' However, the audit revealed that this abatement was admissible only if the service provider did not avail credit of inputs, input services, or capital goods. The Tribunal noted that the appellant had incorrectly utilized the credit for payment of service tax, which was in violation of the conditions of the Notification.Utilization of CENVAT credit for payment of service tax:The appellant utilized CENVAT credit against payment of service tax on 'commercial or industrial construction service,' despite the abatement condition. The Tribunal found that the appellant's utilization of credit for payment of service tax on output services was not in compliance with the conditions of the Notification, leading to the confirmation of the demand of service tax by the Commissioner.Interpretation of the agreement between the parties:The Tribunal referred to the agreement between the appellant and Gautami to determine the nature of the contract. Article 2.1 of the agreement highlighted the composite nature of the contract involving both goods/materials and services. This interpretation played a crucial role in classifying the services under the appropriate category for the levy of service tax.Applicability of service tax under different categories:The Tribunal considered the arguments presented by both parties regarding the classification of services under 'commercial or industrial construction service' and 'works contract.' It relied on previous decisions and legal interpretations to establish that the services rendered by the appellant fell under the category of 'works contract' and not 'commercial or industrial construction service.' The Tribunal ultimately set aside the confirmation of demand under the impugned order and allowed the appeal based on the classification of the services and the applicable tax category.