2017 (12) TMI 1152 - AT - Service Tax

Classification of service - contract with Corporation City of Panaji for Beautification and Landscaping of Panaji Municipal Garden - whether the activity would fall under the head Management Maintenance and Repair Service or construction service? - Held that - From the contract it is found that the appellant undertook construction and extension of Garden of Panaji City of Caranzalem which involved land Development and construction of drainage construction of compound wall developing symmetrical garden pathways promenade function lawn etc. These activities predominate civil construction work and also comprise of activity akin to clearing and excavation and site formation. However the majority of work relate to civil work in the nature of either fresh construction of a civil structure within the park like drainage system pipes/conduits or renovation of civil structure (where old structure are reinforced and retained). The essential character of this composite work is reflected as that of construction service - instead of Management Maintenance or Repair Service this service is appropriately classifiable under Commercial or Industrial Construction Services . Further since this service is being provided to Corporation of the City of Panaji which is a local government body it cannot be said that the construction work is of commercial nature. It is a settled law that construction service provided to government and government bodies are outside the purview of the Commercial or Industrial Construction Services . Demand set aside - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
Confirmation of demand of service tax, interest, and penalty under Section 77 & 78 of the Finance Act, 1994 for an activity related to renovation and construction of a garden.

Detailed Analysis:

1. Nature of Activity - Repair vs. Renovation:
The appellant argued that the activity undertaken by them, involving raising dilapidated structures and building new ones, cannot be classified as maintenance and repair but rather as renovation. They relied on the decision of the Hon'ble High Court of Gujarat to support their argument. The dictionary meanings of "renovation" were discussed to highlight that renovation includes making repairs and creating new things, which goes beyond mere repair. The Tribunal agreed with the appellant's contention that the activity amounted to renovation rather than repair.

2. Alternative Classification:
The appellant suggested that the activity could be covered under commercial and industrial construction service as civil structures, works contract. They argued that civil gardens should not be considered commercial structures, hence not liable to tax under commercial and industrial construction. The Tribunal considered this argument but ultimately agreed with the appellant's main contention that the activity was renovation.

3. Precedent and Exemption:
The appellant also referred to a decision by the Commissioner (Appeals) in their own case where a demand under management, maintenance, and repair service was set aside. They highlighted a retrospective exemption granted to management, maintenance, and repairs of non-commercial government buildings but noted that no findings were given on this provision. The Tribunal acknowledged the previous decision of the Commissioner (Appeals) and the acceptance of it by the Revenue.

4. Detailed Examination of Activity:
The Commissioner (Appeals) had extensively examined the nature of the activity in question, focusing on the specifics of the work undertaken, including demolition, clearing, and construction aspects. The Commissioner concluded that the activity was more in line with renovation work rather than management, maintenance, or repair service. The Tribunal concurred with the Commissioner's findings and allowed the appeal, emphasizing that the demand for service tax was not sustainable based on the nature of the activity.

In conclusion, the Tribunal upheld the appellant's argument that the activity in question was renovation rather than repair, leading to the dismissal of the demand for service tax, interest, and penalty. The detailed analysis of the nature of the activity, classification arguments, precedent, and exemption provisions contributed to the Tribunal's decision to allow the appeal.