2023 (4) TMI 661 - AT - Service Tax

Appellate tribunal remands service tax appeal for re-consideration due to various classification and exemption issues.

The appellate tribunal allowed the appeal by remanding the matter to the adjudicating authority for re-consideration. The appellant successfully ... Levy of service tax - Commercial or Industrial Construction Services - Erection, Commissioning & Installation Services - Construction of Complex Services - Dredging Services - Cleaning Activity Services - Supply of Tangible goods Services - Storage & Warehousing Services - It was alleged that the appellant by wrongly showing various taxable service provided by them under exempted service category had not paid the Service tax - period from 2005-06 to 2009-10 - HELD THAT:- Appellant claims that most of demands have been raised under the wrong category of services hence not sustainable. It is also found that in the present matter service tax demand has been confirmed by the Learned Commissioner on the activity related to the drainage line/ pipe line under ‘Erection, commissioning/installation services. However as per the Larger Bench decision in the case of M/S. LANCO INFRATECH LTD. AND OTHERS VERSUS VERSUS CC, CE & ST, HYDERABAD [2015 (5) TMI 37 - CESTAT BANGALORE (LB)] the said activity of laying pipelines is not covered under the ‘erection, commissioning/ installation service. Appellant herein also claimed that Learned Adjudicating authority wrongly confirmed the demand under the head of cleaning services, whereas their activity is not covered under the scope of cleaning services. It is also observed that the submission of the learned Counsel as well as submission made in the appeal memorandum that the adjudicating authority has not dealt with issue of service provided under the category of ‘construction of complex service services in proper perspective. Appellant claimed that they had not constructed any building or part thereof, having more than 12 residential units. Further the bunglow constructed by the appellant at KPT colony for use by the employee of M/s Kandla Port Trust is for personal use hence not taxable. The issue needs to be remanded back to the adjudicating authority for re-appreciation of the claim of the appellant. This is a fit case for remand the matter to Learned Adjudicating authority for re-consideration of the overall case - The appeal is allowed by way of remand to the adjudicating authority. Issues involved:The issues involved in the judgment are:1. Incorrect classification of services for service tax demand.2. Exemption under Notification No. 25/2007-ST for specific activities.3. Taxability of construction services for government undertakings.4. Taxability of residential complex construction for personal use.5. Composite contracts and taxability under specific service categories.6. Taxability of cleaning services based on the nature of premises.7. Taxability of renting immovable property services based on timelines.Issue 1: Incorrect classification of services for service tax demandThe appellant contested the service tax demand on the grounds of incorrect classification of services. The appellant argued that various services provided were wrongly categorized, leading to the erroneous demand. The appellant specifically challenged the demand related to construction, erection, commissioning, installation, and cleaning services, claiming that they did not fall under the categories determined by the adjudicating authority.Issue 2: Exemption under Notification No. 25/2007-ST for specific activitiesThe appellant invoked Notification No. 25/2007-ST to claim exemption for certain activities undertaken for Kandla Port Trust. The appellant argued that the activities, such as constructing a watchtower and laying pipelines for sewage disposal, were covered under the exemption notification. The appellant contended that the denial of exemption by the Commissioner was based on incorrect interpretation of the exclusion clause, which did not apply to the appellant's new construction activities.Issue 3: Taxability of construction services for government undertakingsRegarding the construction of a residential colony for Kandla Port Trust, the appellant disputed the demand under the category of construction of residential complex services. The appellant argued that the construction was intended for the personal use of the employees, which should be exempt from service tax as per the Finance Act. The appellant cited legal precedents to support their claim that residential complexes constructed for personal use are not taxable.Issue 4: Taxability of residential complex construction for personal useThe appellant further contended that the construction of a bungalow in the KPT colony for the use of Kandla Port Trust employees should not be taxable as it was for personal use. The appellant emphasized the exclusion clause in the Finance Act regarding the eligibility of constructing residential complexes for personal use, including renting out without consideration. The appellant relied on legal decisions to support their argument for exemption from service tax.Issue 5: Composite contracts and taxability under specific service categoriesIn the case of a composite contract involving multiple activities, including dredging, the appellant challenged the demand confirmed under the category of dredging service. The appellant argued that the entire value of the contract should not have been attributed to dredging alone and that the activity should be classified under commercial or industrial construction services. The appellant claimed eligibility for abatement under a specific notification and contested the taxability under the incorrect service category.Issue 6: Taxability of cleaning services based on the nature of premisesThe appellant disputed the demand under the head of cleaning services, emphasizing that the activity was not performed in a commercial or industrial building or premises as required by the Finance Act. The appellant highlighted the specific criteria for taxing cleaning activities and argued that the port area where the activity was conducted did not meet the definition of taxable premises.Issue 7: Taxability of renting immovable property services based on timelinesRegarding the demand under the category of renting of warehouse services, the appellant raised concerns about the timeline of taxability. The appellant claimed that renting of immovable property services became taxable from a specific date and that the demand for services provided before the introduction of the levy was erroneous. The appellant clarified that the services provided were for renting immovable property and not for storage and warehousing of goods, challenging the categorization by the adjudicating authority.This judgment addresses various issues related to the classification of services for service tax demand, exemptions under specific notifications, taxability of construction services for government undertakings, taxability of residential complex construction for personal use, treatment of composite contracts, taxability of cleaning services based on premises, and taxability of renting immovable property services based on timelines. The appellate tribunal allowed the appeal by remanding the matter to the adjudicating authority for re-consideration, directing the appellant to provide necessary documents and supporting evidence for their claims.