2024 (1) TMI 334 - AT - Service Tax

Service tax demands on construction contracts set aside as provisions apply to services only, not composite works contracts per Supreme Court precedent

M/s. Jyoti Sarup Mittal Versus Commissioner of Central Tax, GST, Delhi-East

M/s. Jyoti Sarup Mittal Versus Commissioner of Central Tax, GST, Delhi-East - TMI Issues Involved:1. Non-payment of service tax on 'construction services'.2. Classification of services under various clauses of section 65(105) of the Finance Act, 1994.3. Applicability of abatement and exemptions under relevant notifications.4. Validity of demands and penalties imposed by the Commissioner.Summary:Issue 1: Non-payment of service tax on 'construction services'The appellant was providing 'Construction Services' and was alleged to have not paid service tax on certain services. The Department initiated investigations and issued several Show Cause Notices (SCNs) covering different periods. The demands proposed in these SCNs were confirmed by various Orders-in-Original (O-I-O).Issue 2: Classification of services under various clauses of section 65(105) of the Finance Act, 1994The contracts involved were composite works contracts involving both services and transfer of property in materials. The Supreme Court in Commissioner vs Larsen & Toubro held that composite works contracts were not taxable under service tax prior to 1.6.2007. Therefore, demands for periods before this date were set aside. For periods from 1.6.2007 to 1.7.2012, if the SCNs did not demand service tax under section 65(105)(zzzza), the demands could not be sustained.Issue 3: Applicability of abatement and exemptions under relevant notificationsFor post-2012 periods, the services were examined under the negative list and relevant exemptions. The Tribunal found that services provided to educational institutions and certain government projects were exempt under notifications such as 25/2012-ST and 30/2012-ST. Specific contracts like the construction of an auditorium at Maharishi Dayanand University, Rohtak, and works for NBCC and HSIIDC were found to be exempt or eligible for abatement.Issue 4: Validity of demands and penalties imposed by the CommissionerThe Tribunal set aside several demands and penalties where the services were wrongly classified or where exemptions were applicable. For some contracts, the matters were remanded to the Commissioner for re-examination, especially where the appellant provided certificates showing that service tax was paid by the service recipient.Detailed Judgment:Service Tax Appeal No. 50097 of 2022The demand for the period 2005-06 to 2010-11 was set aside as the services were classified under heads that did not apply to composite works contracts.Service Tax Appeal No. 52211 of 2016- SCN 23.10.2012 (2011-12): Remanded for re-calculation after abatement for materials used in works contracts.- SCN 21.05.2014 (2012-13): Remanded to examine certificates from HSIIDC showing service tax payment.- SCN 17.04.2015 (2013-14): Similar remand for verification of HSIIDC certificates.- All penalties were set aside invoking section 80 of the Finance Act.Service Tax Appeal No. 52133 of 2022- Demands on contracts with NBCC at Kidwai Nagar and NOIDA SEZ were set aside.- The contract with HSCC India Ltd. was remanded to verify the appellant's claim under notification 30/2012-ST.Service Tax Appeal No. 52134 of 2022The demands on contracts with NBCC Rohtak and Engineers India Ltd. were set aside.Service Tax Appeal No. 52135 of 2022- Demands on contracts with NBCC at Kidwai Nagar, NOIDA SEZ, and HSCC India Ltd. were addressed similarly to Appeal No. 52133.- The demand based on amounts received from CPWD and Form 26AS was set aside as the department did not prove these were for taxable services.Conclusion:The appeals were disposed of with several demands and penalties set aside. Matters requiring further verification were remanded to the Commissioner. The appellant was entitled to consequential relief.