2025 (6) TMI 766 - AT - Service Tax

Service tax demand raised on the Appellant under Construction of Residential Complex Service for the period from October 2005 to March 2010 under Section 73(1) of the Finance Act 1994 - invocation of extended period of limitation - imposition of penalties. HELD THAT - The issue as to whether a composite contract involving provision of service as well as transfer of property in goods could be covered under CICS and CCS from the date of introduction of service tax levy on such services was being litigated upon which was finally settled by the Hon ble Supreme Court in the case of CCE Vs. Larsen Toubro Ltd. 2015 (8) TMI 749 - SUPREME COURT . The Apex Court has observed that in as much as section 67 of the Act dealing with valuation of taxable services refers to the gross amount charged for service the services of CICS and CCS would cover only pure service activities as any contrary view would imply that the Union Government can levy service tax on the gross amount including the value of transfer of property in goods also which is constitutionally impermissible. Though the definition of WCS incorporates the definitions of CICS / CCS into it the scope of coverage of these services is distinct. While the definition of CICS / CCS would cover such construction activities without involving any transfer of property in goods such a construction is service simplicitor and whereas a composite construction activity would fall only under WCS. Conclusion - i) Composite contracts involving both service and transfer of property in goods fall exclusively under Works Contract Service and not under Construction of Complex Service or Commercial or Industrial Construction Service. ii) Construction of Complex Service and Commercial or Industrial Construction Service cover only pure service contracts without transfer of property in goods. The demand raised in the impugned Order-in-Appeal passed by the Commissioner of Service Tax is not sustainable. No need to discuss about justifiability for invoking larger period as the Appellant succeeds on merits. As such penalties imposed are also set aside - Appeal allowed.

Summary

The core legal questions considered by the Tribunal in this appeal are twofold: (i) whether the service tax demand raised under the category of Construction of Residential Complex Service for the period from October 2005 to March 2010 is sustainable, and (ii) whether the invocation of the extended limitation period and the imposition of penalties are justified.

Regarding the first issue, the Tribunal examined the nature of the construction service rendered by the appellant, who constructed 18 dwelling units-6 for the landowners and 12 for sale to third parties. The appellant claimed exemption under CBEC Circular No. 108/02/2009, arguing that the flats delivered to the ultimate owners for personal use fell outside the scope of taxable service. The Department, however, issued a Show Cause Notice demanding service tax on the entire construction activity, alleging non-registration, non-collection, and non-payment of service tax during the relevant period.

The appellant contended that the contract was a composite contract akin to a works contract, involving supply of materials by the appellant and execution of construction services, and therefore the demand under Construction of Residential Complex Service was misplaced. Reliance was placed on a Chartered Accountant's certificate confirming that no materials were supplied by the landowners and no service tax was charged to them. The appellant also cited the Tribunal's decision in Real Value Promoters Pvt. Ltd. and the subsequent Supreme Court affirmation in Jain Housing & Construction Ltd., which held that composite contracts involving transfer of property in goods fall under Works Contract Service (WCS) and not under Construction of Complex Service (CCS) or Commercial or Industrial Construction Service (CICS).

The Tribunal referred extensively to the Supreme Court's ruling in CCE Vs. Larsen & Toubro Ltd., which clarified that CCS and CICS cover only pure service contracts without transfer of property in goods. The Court emphasized that taxing composite contracts under CCS or CICS would be constitutionally impermissible as it would amount to levying tax on the value of goods transferred. The statutory framework post-1.6.2007 introduced WCS as a distinct taxable service with mechanisms to exclude the value of goods, thereby distinguishing it from CCS and CICS.

Further, the Tribunal underscored the principle that the demand must be confined to the category specified in the Show Cause Notice. It cannot be altered at the adjudication or appellate stage to a different category without proper notice, as established by precedents and CBEC Circular 128/10/2010. Since the Show Cause Notice alleged tax under Construction of Residential Complex Service, the demand could not be sustained under Works Contract Service without fresh notice.

Applying these legal principles to the facts, the Tribunal found that the appellant's service was composite in nature, involving supply of materials by the appellant and construction services. The appellant did not receive materials from customers, confirming the composite nature of the contract. The demand under Construction of Residential Complex Service was therefore unsustainable both before and after 1.6.2007, as the service rendered was not a pure service simpliciter but a composite contract falling under WCS.

The Tribunal also noted the appellant's reliance on the 67% abatement notification, which further indicated the composite character of the contract. The impugned orders confirming the demand under CCS were thus inconsistent with the settled legal position and the factual matrix.

On the second issue concerning the invocation of the extended limitation period and penalties, the Tribunal held that since the appellant succeeded on the substantive merit of the tax demand, there was no need to delve into the justification for invoking the larger period or imposing penalties. The penalties were consequently set aside as they flowed directly from the unsustainable demand.

The Tribunal concluded by allowing the appeal, setting aside the tax demand and penalties, and granting consequential relief as per law.

Significant holdings include the following verbatim extract from the Tribunal's reasoning in Real Value Promoters Pvt. Ltd.:

"a. The services provided by the appellant in respect of the projects executed by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service in the light of the Hon'ble Supreme Court judgment in Larsen & Toubro (supra) upto 1.6.2007.

b. For the period after 1.6.2007, service tax liability under category of "commercial or industrial construction service" under Section 65(105)(zzzh) ibid, "Construction of Complex Service" under Section 65(105)(zzzq) will continue to be attracted only if the activities are in the nature of services" simpliciter.

c. For activities of construction of new building or civil structure or new residential complex etc. involving indivisible composite contract, such services will require to be exigible to service tax liabilities under "Works Contract Service" as defined under section 65(105)(zzzza) ibid.

d. The show cause notices in all these cases prior to 1.6.2007 and subsequent to that date for the periods in dispute, proposing service tax liability on the impugned services involving composite works contract, under "Commercial or Industrial Construction Service" or "Construction of Complex" Service, cannot therefore sustain."

The core principles established are:

• Composite contracts involving both service and transfer of property in goods fall exclusively under Works Contract Service and not under Construction of Complex Service or Commercial or Industrial Construction Service.
• Service tax demands must be confined to the category of service specified in the Show Cause Notice; reclassification at adjudication or appeal without notice is impermissible.
• Construction of Complex Service and Commercial or Industrial Construction Service cover only pure service contracts without transfer of property in goods.
• Exemption circulars and abatement notifications support the composite nature of contracts and are relevant for classification and valuation.
• Penalties and extended limitation periods are not sustainable if the underlying tax demand is unsustainable on merits.

Accordingly, the Tribunal's final determination was that the service tax demand under Construction of Residential Complex Service for the period October 2005 to March 2010 was unsustainable, the invocation of the larger period and penalties were unjustified, and the appeal was allowed with consequential relief.