2023 (6) TMI 495 - AT - Service Tax

Levy of penalty u/s 76 of the Finance Act 1994 - classification of services - activities of execution of the work of interior decorator - Interior Decorator Service or works contract service - period June 2007 to March 2008 - HELD THAT - The entire service has been provided by the assessee along with materials. The said fact has not been disputed either of the sides. Relying on the decision of the Hon ble Supreme Court in the case of COMMISSIONER CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS 2015 (8) TMI 749 - SUPREME COURT and the decision of the Tribunal in the case of SPANDREL VERSUS COMMISSIONER OF CENTRAL EXCISE HYDERABAD 2010 (5) TMI 299 - CESTAT BANGALORE it is held that the appropriate classification of the said services is Works Contract Service . As there is no demand under Works Contract Service against the assessee but the assessee opted to pay service tax under composite scheme of works contract the same has been taken on record. In that circumstances the appropriate classification of activities of works undertaken is Works Contract Service and they have discharged service tax liability. In these circumstances the demand against the assessee under the category of Interior Decorator Service is not sustainable. Accordingly the same is set aside. As the demand is not sustained the question of imposing penalty under Section 76 of the Finance Act 1994 does not arise. Appeal filed by assessee allowed.

Summary

Issues involved: Appeal against demand of service tax under "Interior Decorator Service" and appeal against non-imposition of penalty under Section 76 of the Finance Act, 1994.

Issue 1: Challenge for confirmation of demand of service tax under "Interior Decorator Service"
The assessee challenged the confirmation of demand of service tax under the category of "Interior Decorator Service" for the period June 2007 to March 2008. The Revenue contended that the activities undertaken by the assessee fell under this category, leading to the issuance of a show-cause notice demanding service tax, interest, and penalty under Section 78 of the Finance Act, 1994. However, after considering the arguments and perusing the records, it was found that the entire service was provided by the assessee along with materials, which was not disputed by either side. Relying on relevant legal precedents, the Tribunal held that the appropriate classification of the services was "Works Contract Service." Since there was no demand under this category against the assessee, and they had opted to pay service tax under a composite scheme of works contract, the demand under "Interior Decorator Service" was deemed not sustainable, and accordingly set aside. As a result, the question of imposing penalty under Section 76 of the Finance Act, 1994, did not arise. The appeal filed by the assessee was allowed, and the appeal filed by the Revenue was dismissed.

Issue 2: Appeal against non-imposition of penalty under Section 76 of the Finance Act, 1994
The Revenue appealed against the impugned order where the adjudicating authority did not impose penalty under Section 76 of the Finance Act, 1994. However, since the demand against the assessee under the category of "Interior Decorator Service" was not sustained and set aside by the Tribunal, the question of imposing penalty under Section 76 did not arise. The Tribunal allowed the appeal filed by the assessee and dismissed the appeal filed by the Revenue.