2025 (5) TMI 2098 - HC - Service Tax

Non-consideration of Circular No. F.No.B1/6/2005-TRU dated 27.07.2005 - scope of new services and proposed expansion in the scope of existing services w.e.f. 16.06.2005 in terms of N/N. 15/2005-ST dated 07.06.2005 - Site formation and clearance excavation earth moving and demolition services - Mining services - no observation regarding verification of any documents. Site formation and clearance excavation and earth moving and demolition service - HELD THAT - The adjudicating authority has taken note of the N/N. 15/2005-ST dated 7.6.2005 and took note of the reference made in the show-cause notice with regard to the services needed for coal mining/extraction and held that the scope of the service has been explained in the Board s circular dated 27.7.2005 and this taxable service covers certain activities like site formation and clearance excavation and earth moving and demolition. The adjudicating authority thereafter proceeded to take note of the definition of open cast working and held that during the material period site formation etc. services were not considered as mining services which was evident from the circular dated 27.5.2007. Noting the language and the text of the circular the adjudicating authority held that in no way this inclusive nature would include services related to mining in it; rather it included all such activities those are needed prior undertaking mining and therefore the circular remains in conformity with the statute. Mining services - HELD THAT - The adjudicating authority examined the terms and conditions of the agreement dated 21.1.2002 executed by the assessee with M/s. PANEM which also provided that the entire gamut of services which were encompassed in the mining activity. Thus on going through both the agreements it is evidently clear that they were executed for the purposes of mining of coal and therefore the services rendered by the assessee cannot be considered as site formation and clearance excavation and earth moving and demolition services for the period from 16.5.2005 to 31.5.2007. Furthermore it is clear from both the agreements that there was no mention of any separate consideration for overburden removal or site formation and the payments were received by the assessee only on basis of the removal of coal. The correctness of the decision in the case of M/s. Larson Toubro 2015 (8) TMI 749 - SUPREME COURT was argued before the Hon ble Supreme Court in the case of Total Environment Building Systems Pvt. Ltd. vs. Deputy Commissioner of Commercial Taxes 2022 (8) TMI 168 - SUPREME COURT wherein the Hon ble Supreme Court held that the review of the case law in M/s. Larson Toubro cannot be entertained as the said judgment stood the test of time and has never been doubted earlier and followed consistently by the Hon ble Supreme Court as well as the various High Courts and Tribunal wherein the Hon ble Supreme Court held Recognising this aspect of the matter in Larsen and Toubro Ltd. this Court held that Service Tax on works contract was not leviable meaning thereby that such tax on the service component of works contract as defined above did not attract Service Tax prior to the amendment. Dropping of the demand to the tune of Rs. 2, 09, 43, 980/- which related to short payment of service tax - HELD THAT - The assessee placed reliance on a certificate issued by the statutory auditor wherein it was seen that the assessee is not permissible to raise invoice to the joint venture companies i.e. the power utility companies towards the mining services rendered to facilitate extraction of quantity of material lying at stock of mines pit head and/or loading point but not delivered to the power plant. Further under the Mercantile System of accounting the expenditure incurred on account of extraction of such quantity of material lying at the mine stock as on the date of balance-sheet are chargeable to the profit and loss account and therefore provision was also required to be made in the annual accounts as income from mining services against the value of such coal stock at the mine site not eligible for invoice by the firm to the respective joint venture companies. The adjudicating authority noted that the statutory auditor have also certified to the effect that the decisions between income of the firm from mining services during the period from 1.4.2008 to 31.3.2009 as per the service tax return and the amount received in the annual accounts of the year ended 31.3.2009 is attributable to the said provision of income from mining services made in the annual accounts on stock of material not delivered to the power plant and not invoice to the joint venture companies. Thus the adjudicating authority gave due regard to the certificate issued by the statutory auditor and found that the matter has been completely reconciled and consequently set aside the demand of Rs.2, 09, 43, 980/-. The learned Tribunal examined the correctness of the finding recorded by the adjudicating officer and also the fact that the statutory auditor have given a certificate which is completely reconciled the differences affirmed the order of the adjudicating authority. We find that the tribunal rightly concurred with the finding rendered by the adjudicating authority who had rightly taken note of the fact of the certificate issued by the statutory auditor - the tribunal rightly concurred with the finding rendered by the adjudicating authority who had rightly taken note of the fact of the certificate issued by the statutory auditor. Thus the learned Tribunal was right in rejecting the revenue s appeal. Conclusion - i) The Tribunal correctly confirmed the adjudicating authority s order dropping the service tax demand on site formation and clearance excavation earth moving and demolition services for the period 16.06.2005 to 31.05.2007. ii) The Tribunal rightly upheld the dropping of the demand of Rs. 2, 09, 43, 980/- for short payment of service tax for 2008-09 based on proper reconciliation and accounting treatment. This appeal is dismissed and the substantial questions of law are answered against the revenue.

Summary

The core legal questions considered in this judgment are:

a. Whether the Customs and Central Excise And Service Tax Appellate Tribunal (the Tribunal) erred in dropping the demand of service tax on site formation and clearance, excavation and earth moving, and demolition services for the period from 16.06.2005 to 31.05.2007, particularly in light of Circular No. F.No.B1/6/2005-TRU dated 27.07.2005 and Notification No. 15/2005-ST dated 07.06.2005.

b. Whether the Tribunal failed to properly interpret the inclusive and indicative nature of the definition of site formation and clearance, excavation, earth moving, and demolition services as per the said circular.

c. Whether the Tribunal erred in not considering that preparatory activities prior to mining, such as blasting, rock removal, drilling, boring, overburden removal, and other similar excavating and earthmoving services, fall within the scope of site formation and clearance, excavation, earth moving, and demolition services.

d. Whether the Tribunal erred in dropping the demand of service tax amounting to Rs. 2,09,43,980/- on mining services for 2008-09, which was raised based on a differential amount between the Balance Sheet and Service Tax return figures.

e. Whether the adjudicating authority failed to verify relevant documents, including invoices certified by the Chartered Accountant, and whether the Tribunal erred in not scrutinizing the discharge of the involved service tax liability.

Two primary issues arise from these questions:

1. The correctness of the Tribunal's confirmation of the adjudicating authority's order regarding the demand of service tax on site formation and clearance, excavation, earth moving, and demolition services for the period 16.06.2005 to 31.05.2007.

2. The correctness of the Tribunal's decision to drop the demand of service tax of Rs. 2,09,43,980/- related to alleged short payment for the financial year 2008-09.

Issue 1: Service Tax Demand on Site Formation and Clearance, Excavation, Earth Moving, and Demolition Services (16.06.2005 to 31.05.2007)

The legal framework includes Notification No. 15/2005-ST dated 07.06.2005, Circular No. F.No.B1/6/2005-TRU dated 27.07.2005, and relevant service tax provisions under the Central Excise Act, 1944. The circular clarified the scope of new services and expanded existing services effective from 16.06.2005, stating that the definition of site formation and clearance, excavation, earth moving, and demolition services is inclusive and indicative, not exhaustive.

The adjudicating authority analyzed the scope of these services, noting that the circular's inclusive definition covered preparatory activities before mining but did not extend to mining services themselves. It emphasized that site formation and clearance services are distinct from mining services and are intended to cover activities necessary prior to mining operations.

Contracts executed by the assessee with mining companies were examined, revealing that payments were based solely on coal production volumes and not separately for site formation or overburden removal. This indicated that the services rendered were composite mining services rather than discrete site formation services.

The adjudicating authority relied on precedents, including decisions by coordinate benches of the Tribunal, which consistently held that agreements related to mining activities could not be bifurcated artificially into site formation and mining services for service tax purposes prior to 1.6.2007.

The Tribunal concurred with this reasoning, affirming that the agreements were composite contracts for mining services and that site formation services were not separately taxable during the relevant period.

Significantly, the Court referenced the Supreme Court's decision in a leading case which clarified that service tax on composite works contracts was not leviable prior to 1.6.2007, as the definition and taxation of works contracts under service tax law were introduced only from that date. The Court cited the Supreme Court's observations that the Finance Act, 1994 did not provide machinery for levying service tax on indivisible works contracts before this amendment, and that the service element in such contracts could not be taxed separately before 1.6.2007.

Further, the Supreme Court's recent reaffirmation of this position in a 2022 judgment was noted, emphasizing that the concept of works contracts and their service components being taxable applies only from 1.6.2007 onwards.

Thus, the Court held that the Tribunal was justified in confirming the adjudicating authority's order dropping the demand for service tax on site formation and clearance, excavation, earth moving, and demolition services prior to 1.6.2007, as these were part of composite mining contracts not liable to service tax under the law as it stood during the relevant period.

Issue 2: Dropping of Demand of Rs. 2,09,43,980/- for Short Payment of Service Tax for 2008-09

This issue arose from a discrepancy between the service tax return figures and the balance sheet of the assessee for the financial year 2008-09. The revenue raised a demand on the differential amount, alleging short payment of service tax.

The assessee's defense was that the differential amount related to the provision of closing stock of coal at the pithead as of 31.3.2009, for which no invoice or bill was raised during the financial year, consistent with mercantile accounting principles. The coal stock was accounted for in the profit and loss account and balance sheet but had not been delivered to the power plants, and hence no service tax liability arose during that year.

The assessee produced a certificate from the statutory auditor confirming that invoices could not be raised for the stock lying at the mine site and that the accounting treatment was proper. The certificate reconciled the differences between income declared in the service tax returns and the annual accounts.

The adjudicating authority accepted the auditor's certificate and found that the matter was fully reconciled, setting aside the demand. The Tribunal affirmed this finding after re-examining the facts and documents.

The revenue argued that the adjudicating authority did not verify the relevant invoices or the discharge of service tax liability, but the Court found that the Tribunal had rightly relied on the auditor's certificate and the reconciliation provided. The absence of invoices during the financial year for stock not yet delivered was a valid reason for non-payment of service tax in that year.

The Court concluded that the Tribunal's decision to drop the demand was justified and that the revenue's appeal on this point was rightly rejected.

Significant Holdings:

"This would unmistakably show that what is referred to in the charging provision is the taxation of service contracts simpliciter and not composite works contracts, such as are contained on the facts of the present cases. It will also be noticed that no attempt to remove the non-service elements from the composite works contracts has been made by any of the aforesaid Sections by deducting from the gross value of the works contract the value of property in goods transferred in the execution of a works contract."

"Service Tax on works contract was not leviable, meaning thereby, that such tax on the service component of works contract as defined above did not attract Service Tax prior to the amendment."

Core principles established include:

• Composite contracts for mining services cannot be artificially bifurcated to impose service tax on site formation and clearance, excavation, earth moving, and demolition services prior to 1.6.2007.
• The concept and taxation of works contracts under service tax law apply only from 1.6.2007 onwards.
• Accounting treatment under the mercantile system and auditor certification are relevant for determining service tax liability on closing stock not invoiced during the financial year.
• Verification of documentary evidence and reconciliation certificates are critical in adjudicating demands based on discrepancies between balance sheet and service tax returns.

Final determinations:

• The Tribunal correctly confirmed the adjudicating authority's order dropping the service tax demand on site formation and clearance, excavation, earth moving, and demolition services for the period 16.06.2005 to 31.05.2007.
• The Tribunal rightly upheld the dropping of the demand of Rs. 2,09,43,980/- for short payment of service tax for 2008-09, based on proper reconciliation and accounting treatment.
• The appeal filed by the revenue was dismissed, and the substantial questions of law were answered against the revenue.