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2018 (8) TMI 103 - CESTAT NEW DELHIConstruction services - various activities done by the appellant - it is observed that the appellant, even prior to the registration were engaged in construction services, but have not discharged the liability for the period with effect from April 2005 to September 2009 - benefit of abatement denied - whether all such activities of the assessee/respondent can be categorized as Commercial or Industrial Construction Services? Held that:- Perusal of definition of commercial or industrial construction services makes it clear that the services rendered by the appellant will fall under Sub-clause C thereof. Since the material is also provided by the service provider, the case of the appellant as far as completion and finishing services as detailed above are concerned, it stands clearly covered under Item No. 5 of the Table given in Notification No. 1/2006-ST dated 01.03.2006 - the Commissioner (Appeals) has rightly extended the benefit of this notification. The other construction services which are residential in nature, the phraseology itself takes that Contract out of the definition of Commercial and Industrial Construction. Hence, levying the demand for the said construction under the head of it being commercial is, therefore, not at all sustainable. Levy has rightly been done away. Commercial nature of services - Held that:- dmittedly assessee/respondent is constructing Ambedkar Peeth, a programme under Government of Rajasthan for M/s AVS and is also rendering services to a PSU, i.e., Jaipur Vidyut Vitran Nigam Limited (JVVNL) both being the authorities under Government of Rajasthan in services rendered to them will clearly be out of the ambit of the above definition of Commercial and Industrial Construction. Resultantly, any demand raised for these constructions under Commercial or Industrial Construction Services is not sustainable - demand rightly set aside. Penalty u/s 76, 77 and 78 of FA - Suppression of facts - Held that:- Since the assessee/respondent has not filed the Service Tax return in the form ST3 in the manner and frequency required under Service Tax Rules, 1994 and has also failed to pay the due Service Tax, the same amounts to the deliberate suppression of facts - Otherwise also, the law requires assessee itself to determine the classification of service and to pay tax on self assessment basis. Since the assessee/respondent has failed to act accordingly, the penalty under Section 76 and 78 have rightly been confirmed against the respondent - the penalty under Section 77 has been done away as being not warranted in view of the penalties imposed under Section 76 and 78. Appeal allowed in part.
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