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of <h1>Sub-contractor wins appeal against Service Tax demand for earth retaining structure services under Notification 25/2012-ST exemption</h1> CESTAT Allahabad allowed the appeal and set aside the demand. The appellant, a sub-contractor providing temporary earth retaining structure services, was ... Difference in the value of service declared in ST-3 returns and Form 26AS (TDS statement) - taxability of services - Works Contract Service and Consultancy Service - demand raised on the basis of figures reflecting in Form 26AS and penalty under Section 78 of the Finance Act, 1994 - exemption from Service Tax in terms of clause (e) of Sl. No.12 of Notification No.25/2012-ST - HELD TAHT:- The Appellant has submitted that during F.Y. 2016-17 the Appellant had been given sub-contract by M/s JMC Project India Ltd., Plot No. B-21, Sector-58, Noida for providing and installing temporary earth retaining structure with soil nailing with insertion of nails in all strata for the soil including fixing wire nesh on exposed excavated surface, bearing plates, nuts, PVC drainage pipes, shotcrete etc. The said work relates to installing of drainage system in connection with sewerage treatment or disposal pertaining to Supreme Court, Additional Office Complex, Pragati Maidan, New Delhi. The award was for Rs.2,82,40,000/-. During F.Y. 2016-17, the Appellant provided services in terms of said contract for an amount of Rs.36,36,586/-. The Service Tax involved on such value of services was worked out to be Rs.2,18,195/-. The said service was exempt from Service Tax in terms of clause (e) of Sl. No.12 of Notification No.25/2012-ST dated 20.6.2012. As per clause (h) of Sl.No.29 of the said Notification, sub-contractor of Works Contract was also exempt from Service Tax if main contractor was exempt from Service Tax. Thus, the demand of Rs.2,18,195/- is liable to be dropped. The Service Tax payable during 2016-17 is Rs.1,09,50,292/- (Rs.1,11,68,487/- Rs.2,18,195/-). The Appellant has deposited Rs.66,02,978/- in cash and Rs.10,41,790/- by adjusting through Cenvat during F.Y. 2015-16 and Rs.30,92,779/- in cash and Rs.36,27,094/- by adjusting through Cenvat for the F.Y. 2016-17. Total Service Tax deposited was Rs.1,43,64,641/- before issuance of the SCN. The Cenvat credit claimed by the Appellant for the period from October, 2015 to March, 2017 was rejected by the Adjudicating Officer simply on the ground that ST-3 returns were not filed. It is noticed that manner of availment of Cenvat credit of duties or service tax paid on inputs and input services is provided under Rule 9 (5)(6) of the Cenvat Credit Rules, 2004. The above provisions make it absolutely clear that Cenvat credit is taken by way of maintaining record, not on the basis of filing of ST-3 returns. We therefore do not find any reason to reject eligible Cenvat Credit to the Appellant. There is no short payment of Service Tax during F.Y. 2015-16 and 2016-17. As regards penalty under Section 78 of the Finance Act, 1994, it is found that the same is imposable equal to the amount of Service Tax short paid or not paid. As there is no short payment of Service Tax, no penalty is imposable under Section 78 of the Finance Act, 1994. We further find that services rendered by the Appellant namely Works Contract Service and Engineering Consultancy Service were declared taxable services under wrong provisions. Hence, the impugned order is not maintainable on the said count also. Thus, we are of the considered view that the impugned order cannot be sustained and is accordingly, set aside. The appeal filed by the Appellant is allowed with consequential relief, as per law. The core legal questions considered in this appeal include:1. Whether the demand of Service Tax on the basis of figures shown in Form 26AS (TDS statement) without independent verification of the nature of services and valuation is sustainable.2. Whether the services rendered by the Appellant during the relevant financial years fall under the taxable categories as determined by the adjudicating authority, particularly the classification under Works Contract Service, Renting of Machinery Service, and Engineering Consultancy Service.3. Whether the provisions of Section 65 of the Finance Act, 1994, which were omitted effective 01.07.2012, can be applied for determining the taxability of services rendered during the financial years 2015-16 and 2016-17.4. Whether the Appellant's failure to file ST-3 returns for the period from October 2015 to March 2017, due to illness and death of the working director, justifies confirmation of demand and penalty.5. Whether the value for charging Service Tax on Works Contract Service was correctly determined, specifically the application of Rule 2A of the Service Tax (Determination of Value) Rules, 2006.6. Whether the Cenvat credit claimed by the Appellant can be rejected solely on the ground of non-filing of ST-3 returns.7. Whether penalty under Section 78 of the Finance Act, 1994 is imposable in the absence of short payment of Service Tax.8. Whether exemption notifications applicable to sub-contractors of Works Contract service providers were properly considered in the demand.Issue-wise Detailed Analysis:1. Demand of Service Tax Based on Form 26AS Figures Without VerificationThe legal framework involves the Finance Act, 1994, and the principle that Service Tax liability cannot be imposed solely on the basis of third-party information such as Form 26AS, which is a TDS statement under the Income Tax Act. The Court referred to binding precedents including the Supreme Court's decision in the case of Jain Housing & Construction Ltd., which held that entries in Form 26AS cannot form the sole basis for fastening Service Tax liability.The Court noted that the Show Cause Notice (SCN) was issued based on third-party information without investigation into the nature of services or valuation methods. The Appellant submitted evidence such as contracts, invoices, and ledger accounts to demonstrate the true nature of services rendered. The adjudicating authority's reliance on Form 26AS entries to classify services as Renting of Machinery was found to be erroneous and not maintainable.The Court applied the law to facts by accepting the Appellant's evidence and rejecting the demand based solely on Form 26AS figures. It treated the services to M/s Krishna Build Estate Pvt. Ltd. as Works Contract Service rather than Renting of Machinery Service, consistent with the contractual documentation.2. Classification of Services Rendered and Applicability of Section 65The adjudicating authority classified the services under Section 65(105)(g) and Section 65(105)(zzzza) of the Finance Act, 1994. However, Section 65 was omitted effective 01.07.2012 following the introduction of the negative list regime under the Finance Act, 1994.The Court held that applying the provisions of Section 65 for the financial years 2015-16 and 2016-17 was legally incorrect. The services must be classified under the negative list regime and relevant notifications applicable during the period. This misclassification rendered the demand unsustainable.Regarding the nature of services, the Court accepted the Appellant's submission that the services rendered to M/s WAPCOS Ltd. and others were Works Contract Services, supported by ledger entries and contractual documents, overruling the adjudicating authority's classification as Engineering Consultancy Service based on Form 26AS entries.3. Determination of Taxable Value under Rule 2A of the Service Tax (Determination of Value) Rules, 2006Rule 2A(ii)(A) stipulates that for original works contracts, the taxable value is 40% of the aggregate contract value. The Court observed that the Appellant's services fell under original works contracts and hence Service Tax should be charged only on 40% of the contract value.The adjudicating authority had determined Service Tax liability based on the full value as per balance sheets, which was contrary to the statutory valuation rules. The Court found this approach incorrect and adjusted the taxable value accordingly.4. Non-filing of ST-3 Returns and Its Consequences on Cenvat Credit and DemandThe Appellant failed to file ST-3 returns for the relevant period due to the illness and subsequent death of the working director. The adjudicating authority rejected the Cenvat credit claimed on the ground of non-filing of returns.The Court referred to Rule 9(5) and 9(6) of the Cenvat Credit Rules, 2004, which require maintenance of proper records for availing Cenvat credit and place the burden of proof on the manufacturer or service provider. The Court emphasized that the entitlement to Cenvat credit depends on proper records and not merely on filing of ST-3 returns.Since the Appellant maintained proper records and deposited the due Service Tax, the rejection of Cenvat credit solely due to non-filing of returns was found to be unjustified. Consequently, no short payment of Service Tax was established.5. Exemption Notification for Sub-contractorsThe Appellant was a sub-contractor under a main contract awarded to M/s JMC Project India Ltd. for installation of drainage systems related to sewerage treatment. The Court noted Notification No. 25/2012-ST dated 20.6.2012, specifically clause (e) of Sl. No.12 and clause (h) of Sl. No.29, which exempt sub-contractors from Service Tax if the main contractor is exempt.The Court accepted the Appellant's claim that the services provided under this contract were exempt and accordingly directed the dropping of the demand of Rs. 2,18,195/- related to this work.6. Penalty under Section 78 of the Finance Act, 1994Section 78 imposes penalty equal to the amount of Service Tax short paid or not paid. Since the Court found no short payment of Service Tax after proper valuation and acceptance of Cenvat credit, it concluded that no penalty under Section 78 was imposable.7. Limitation and Procedural AspectsThe Appellant raised limitation as a ground, but the Court did not find it necessary to elaborate on this point in detail, focusing instead on the substantive issues of classification, valuation, and admissibility of credit.Competing Arguments and TreatmentThe Department relied on third-party information from the Income Tax Department and the adjudicating authority's findings to justify the demand. The Appellant challenged the basis of demand, classification of services, valuation, and penalty imposition.The Court gave precedence to documentary evidence, statutory provisions, and binding judicial precedents over mere entries in Form 26AS. It rejected the Department's reliance on incorrect statutory provisions and improper valuation methods.ConclusionsThe Court concluded that the demand based on Form 26AS entries without proper investigation was unsustainable. The services rendered were wrongly classified under omitted provisions and incorrect categories. The valuation of Works Contract Service was not in accordance with Rule 2A. The rejection of Cenvat credit on the ground of non-filing of returns was improper. The exemption notifications applicable to sub-contractors were not considered correctly. Consequently, the demand and penalty were set aside.Significant Holdings:'It is a trite law that no demand of Service Tax can be made on the basis of entries shown in Form 26AS.''The provisions of Section 65 were omitted with effect from 01.07.2012 after the introduction of negative list of services concept. Since the demand has been confirmed by holding the taxability of services undertaken by the Appellant under incorrect provisions, the same is liable to be quashed.''The manner of availment of Cenvat credit of duties or service tax paid on inputs and input services is provided under Rule 9 (5)(6) of the Cenvat Credit Rules, 2004... Cenvat credit is taken by way of maintaining record, not on the basis of filing of ST-3 returns.''In case of original work, the value for charging Service Tax would be forty percent of the aggregate value as per Rule 2A(ii)(A) of the Service Tax (Determination of Value) Rules, 2006.''Penalty under Section 78 of the Finance Act, 1994 is imposable equal to the amount of Service Tax short paid or not paid. As there is no short payment of Service Tax, no penalty is imposable.'The Court set aside the impugned order and allowed the appeal with consequential relief as per law.
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