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2018 (1) TMI 216

Classification of services - renovation, restoration, maintenance work with reference to various buildings like hotels, hospitals etc - Revenue contended that the services rendered by the appellant are liable to be taxed under the category of construction service during the period 10/09/2004 to 15/06/2005 and repair and maintenance of immovable property service for the period 16/06/2005 to 25/07/2007 - appellants claimed that the services provided by them are essentially restoration and renovation of immovable property and accordingly they are eligible to avail abatement of 67% in the taxable value. - Held that: - an illustrative list of the various work executed by the appellant was provided. A brief of some of the sample work orders/contracts were also reproduced by the Original Authority in the said para. We have perused the same alongwith the applicable statutory entry relevant to construction services w.e.f. 10/09/2004. The relevant clause of the construction services in terms of Section 65 (3a) of the Finance Act, 1994 is “repair, alteration or restoration of, or similar services in relation to building or civil structure”. - Regarding change of classification w.e.f. .....

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to 28/02/2009. In terms of arrangement with various clients, the appellants provided various renovation, restoration, maintenance work with reference to various buildings like hotels, hospitals etc. The Revenue entertained a view that the appellant did not discharge due service tax on their activity. Upon verification of various documents and details of work executed by the appellant, proceedings were initiated against them to demand and recover service tax and to impose penalties. The impugned order decided the dispute. The appellants claimed that the services provided by them are essentially restoration and renovation of immovable property and accordingly they are eligible to avail abatement of 67% in the taxable value. The Revenue contended that the services rendered by the appellant are liable to be taxed under the category of construction service during the period 10/09/2004 to 15/06/2005 and repair and maintenance of immovable property service for the period 16/06/2005 to 25/07/2007. It was held that the services provided by the appellant were more specifically classifiable under maintenance or repair service/management maintenance or repair service by the specific descriptio .....

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(g) the demand is contested on the question of limitation also. There is no suppression of fact with intend to evade payment of service tax. The issue involved is one of interpretation and correct classification of services rendered by the appellant. Relying on various case laws it is submitted that there is no justification in confirming demand for extended period ; (h) regarding the dispute with reference to payment of 8% on exempted services due to non-maintenance of separate accounts on common input services it is submitted that the total amount of Cenvat credit availed (Rs. 2,97,310/-) was paid in cash alongwith an interest of ₹ 50,903/- on 22/04/2010. Since, the entire amount of Cenvat credit has been deposited the same should be treated as non-availment of any credit and the provisions of Rule 6 (3) will not apply to the present case. The demand of ₹ 8,35,048/- on this account is not sustainable. (i) the penalties imposed on the appellant were also contested on the ground that the whole issue is with reference to interpretation of legal provisions and accordingly there can be no justifiable reason for imposing penalties. 4. The learned AR contested the submissio .....

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s; (iv) Epoxy Coating and / or Biosan Wall Covering; (v) Application of Paints on Constructed Areas; (vi) Bactericidal Coating of Walls & Sealing; (vii) Anti Skid Treatment; (viii) Deep Scrubbing and Rinsing by using cleaner; (ix) Roof Heat Insulation Coating Works and (x) Restoration provided by the notices were classified under clause (b) of the Construction Services . Since Maintenance or Repair Service / Management, Maintenance or Repair Service was not in existing during the period, the only question to be decided is whether the services were covered under the category of Construction Service . The notices have argued that during this period, these services were covered under the category of Construction Service and in fact, have paid Service Tax accordingly, though after claiming abatement of 67% from the value. Since no dispute has been raised on classification of services during the above period, I come to examine the eligibility of abatement of 67% under the Notification No. 15/2004-ST dated 10.09.2004 on these services. On examination of the above invoices, it is seen that the assessable value charged by the notices included that value of materials used in providing s .....

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ew service, namely Maintenance or Repair Service / Management, Maintenance or Repair Service as the notices were providing these services under a contract or agreement for maintenance of immovable properties. I find that the notices had been raising invoices for such maintenance work repeatedly on monthly or periodically basis on the basis of mutual agreements or contracts with their customers. Further, I find that in relation to services namely, (i) Cleaning of Swimming Pool and Sealing thereafter; (ii) Honing by diamond pads and apply of sealant; (iii) Honing by diamond pads; (iv) Epoxy Coating and / or Biosan Wall Covering; (v) Application of Paints on Constructed Areas; (vi) Bactericidal Coatings of Walls & Sealing; (vii) Anti Skid Treatment; (viii) Deep Scrubbing and Rinsing by using cleaner; (ix) Roof Heat Insulation Coating Works and (x) Restoration, the notices had also been raising Incoices / Bills on work to work basis / running bills as per mutual agreements or contracts with their customers. I find that the notices were engaged in providing these services in relation to immovable properties of hotel industries including Trident Group of Hotels all over India and for .....

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cally classifiable under the category of maintenance or repair service/management, maintenance or repair service in view of the specific description of the tax entry. Regarding change of classification w.e.f. 16/06/2005, the Original Authority recorded that in most of the contracts, the appellant used the term maintenance and even if they have sometimes used the term restorations it is more akin to maintenance as the services were of continuous nature for maintaining properly in the hotel premises. It was observed that whatever terms were used in the agreements or contracts, the same were examined in the overall context to understand the scope of work before classifying the same under management or maintenance. 8. We have carefully considered the above findings of the impugned order alongwith the objections put-forth by the appellant. As submitted by the learned AR, we note that all the grounds raised by the appellant regarding the nature of service and the correct classification have been duly addressed by the Original Authority. There is no substantial or crucial aspect which was left un-addressed. On careful consideration of the above findings of the Original Authority, we are o .....

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