2023 (12) TMI 783 - AT - Service Tax

Revenue appeal dismissed as contractor properly paid service tax under composition scheme and Point of Taxation Rules 2011

CESTAT Allahabad dismissed revenue's appeal regarding short payment of service tax on commercial construction services. The appellant had mis-classified ... Short payment of service tax - Commercial or Industrial Construction Services - mis-classification of services as Work Contract Services - benefit of the Work Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 - availment of CENVAT Credit - benefit of N/N. 1/2006-ST dated 01.03.2006 denied - HELD THAT:- Reliance placed upon the decision of Delhi Bench in case of MEHTA PLAST CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR [2014 (5) TMI 1131 - CESTAT NEW DELHI] where it was held that I find that the payment of service tax @ 4.12% itself shows that they have opted composition scheme for all the contracts. Further the noticees have not paid any service tax in respect of any contract in any other services. The entire payment after calculation of service tax @ 4.12% has been made under composition scheme of Works Contract Services. In view of above, I allow the benefit of composition scheme as the noticees fulfil the condition as mentioned in the notification No. 32/2007-S.T., dated 22-5-2007. Reliance also placed in HARSH CONSTRUCTIONS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NASHIK [2019 (3) TMI 1679 - CESTAT MUMBAI] where it was held that though the appellant had availed the cenvat credit of service tax paid on the input services, but the same was reversed and the reversal particulars were duly reflected in the period ST-3 returns. Hence, we are of the considered view that the adjudged demands confirmed on the appellant cannot be sustained. Further impugned order also concludes that respondent has not received any consideration from his clients in respect of the two debit notes dated 31.03.2012 and 31.03.2013 against which this demand, but has included the value of these services in his ST-3 return as per the Point of Taxation Rules, 2011 and has paid service tax on these services provided. This finding recorded in the impugned order has not been challenged. Further for the debit note dated 31.03.2011, it is observed that this debit note is for the period prior to introduction of the POT, 2011 and the service tax was to be paid only on realization of the service consideration. Commissioner (Appeal) has in the impugned order consideration of the bank statements and the ledgers of the respondent have concluded that the respondent have not received the service consideration. There are no merits in the appeal filed by the revenue - appeal dismissed. Issues Involved:1. Classification of services under the category of 'Work Contract Service'.2. Eligibility for the benefit of the Work Contract (Composition Scheme for Payment of Service Tax) Rules, 2007.3. Alleged short payment of service tax and misclassification of services.4. Compliance with procedural requirements under Rule 3(3) and 3(4) of the Work Contract (Composition Scheme for Payment of Service Tax) Rules, 2007.5. Invocation of the extended period of limitation under Section 73 of the Finance Act, 1994.6. Imposition of penalties under Section 78 of the Finance Act, 1994.Summary:1. Classification of Services:The tribunal held that the services provided by the appellant were correctly classified under the category of 'Work Contract Service' as defined under Section 65(105)(zzzza) of the Finance Act, 1994. The appellant had executed a project development agreement for the construction of a hotel, which involved the transfer of property in goods and services, fulfilling the twin conditions of clause (i) and (ii) (b) of the Explanation to Section 65(105)(zzzza).2. Eligibility for Composition Scheme:The tribunal affirmed that the appellant was eligible for the benefit of the Work Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. The appellant had complied with the substantive requirements of the scheme by paying service tax at the composition rate, even though no written option was filed. This was supported by precedents such as Mehta Plast Corporation and ABL Infrastructure Pvt. Ltd., which held that the payment of service tax at the composition rate itself indicates the exercise of the option.3. Alleged Short Payment and Misclassification:The tribunal found that the appellant had not short-paid the service tax. The appellant had issued debit notes for the entire consideration, including VAT/Sales Tax, which was to be reimbursed by the service recipient. The tribunal noted that the appellant had correctly classified the service and paid the service tax accordingly, and there was no evidence of any amount charged in excess of the declared/agreed value of service.4. Compliance with Procedural Requirements:The tribunal held that the appellant had substantially complied with the procedural requirements under Rule 3(3) and 3(4) of the Work Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. The appellant's act of paying service tax at the composition rate was deemed sufficient to indicate the exercise of the option under Rule 3(3), even in the absence of a written declaration.5. Extended Period of Limitation:The tribunal did not find it necessary to discuss the limitation of time for raising the demand, as the demand was not sustainable on merits. The tribunal emphasized that the appellant had not received any payment against the debit notes till date, and the service tax was paid on an accrual basis as per the Point of Taxation Rules, 2011.6. Imposition of Penalties:The tribunal set aside the penalties imposed under Section 78 of the Finance Act, 1994. The tribunal concluded that there was no willful suppression of facts or intent to evade payment of service tax by the appellant.Conclusion:The tribunal dismissed the revenue's appeal, upheld the classification of services under 'Work Contract Service,' and confirmed the appellant's eligibility for the composition scheme. The tribunal found no merit in the allegations of short payment, misclassification, or non-compliance with procedural requirements. The demand and penalties imposed by the adjudicating authority were set aside.