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TMI Blog2009 (11) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... ith interest and had imposed penalty under Section 76 and 77 and also imposed equivalent amount of penalty of Rs. 4480032/- under Section 78. In addition to this, penalty of Rs. 2000/- was also imposed under Rule 7C of Service Tax Rules, 1994. The appellant in their grounds of appeal have submitted as follows : (a) Their activity fall under the service category of works contract and the department itself had recognized their activity under the said category with effect from 1-6-2007 is correct. (b) They submitted that when department had admitted that the activity carried out by the appellant was works contract service, the department could not demand service tax under construction of commercial complex and under construction of residential complex. (c) The appellant submitted that by Finance Act, 2007 service tax was made on the service portion of the works contract by bringing in separate service category. Only those works contracts which attract VAT/Sales Tax involving transfer of property are covered. Works contract would include erection, commissioning or installation, commercial or industrial construction, construction of complex and turn key projects. (d) They subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consisting of two separate residential flats namely Plama Diamond and Plama Residency. The appellant submitted that they had not constructed any commercial complex in respect of Plama Citi Homes. Plama Diamond was completed even prior to 15-4-2005. The Plama Residency project was completed on 20-5-2006 which is confirmed by completion certificate issued by Mangalore City Corporation. Therefore the levy of service tax on residential complex was introduced only on 16-6-2005 and tax if any can be levied only from 16-6-2005 onwards but not prior to that. (k) The appellant contested that the extended period cannot be mechanically applied. The show cause notice dated 24-9-2007 had proposed demand of tax for the period from 10-9-2004 to 31-12-2006. The department had issued show cause notice invoking the larger period after 7 months from the date of collection of information and accordingly the demand is barred by time. (l) The appellant also contested imposition of interest and penalties. The personal hearing was attended by Shri Ashok A Deshpande. Findings 3. The Joint Commissioner has first settled the issue of classification of the service in para 31, 32 and 33 of his order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which the statute, if operated retrospectively, would prejudicial affect vested rights or the illegality of past transactions, or impair contracts, or impose a new duty or attach a new disability in respect of past transactions or consideration already passed. (iii) CCE V. Vazir SultanTobacco Co. Limited - 1996 (83) E.L.T. 3 (S.C.) (iv) Ponds India Ltd. v. CCE - 1997 (90) E.L.T. 3 (S.C.), wherein it was held that there cannot be duty liability on goods manufactured prior to levy of duty, (v) Glaxo Smithkline - 2006 (3) S.T.R. 711 (T) (vi) Board of Control for Cricket in India v. CST - 2007 (7) S.T.R. 384 (T), wherein it was held that introduction of new tariff entry implies that coverage in new tariff for the purpose of tax was an area not covered by earlier entry. All the case laws cited by the service provider in their defence speak of duty liability on goods manufactured prior to levy of duty stating that duty cannot be levied on the goods prior to levy of duty. Further, service tax is leviable on services in respect of which charge of tax has been created under the Act at the prescribed rates. Services provided before the date on which charges of tax is created und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of the provisions particularly where the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention of governing purpose of the statute more than what is stated in the plain language. It is not the economic results sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does not follow from the plain, unambiguous language of the statute. Words cannot be added to or substituted so as to give a meaning to the statute which will serve the spirit and intention of the legislature. The statute should clearly and unambiguously convey the three components of the tax law i.e. the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. If there is any ambiguity regarding any of these ingredients in a taxation statute then there is no tax in law. Then it is for the legislature to do the needful in the matter. The very first requisite for levy of service tax from the assessee in respect of the works contracts executed by them during the period of dispute is lacking in the present case i.e. the taxable event. Indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that, for the period 1993-99, Scientific and Technical Consultancy Service would not be taxable as Consulting Engineers Service . In other words, a service classifiable as Scientific and Technical Consultancy Service was held not to be taxed as Consulting Engineers Service for a period prior to 16-7-2001. Para 38 of 2009 (14) S.T.R. 289 (Bom. HC) 38. If the Department s contention is accepted that would mean that the activities of the members of the 1st petitioner are covered by entry (zzzy) and entry (zzzzj). Such a result is difficult to comprehend because entry (zzzzj) is not a specie of what is covered by entry (zzzy). Introduction of new entry and inclusion of certain services in that entry would presuppose that there was no earlier entry covering the said services. Therefore, prior to introduction of entry (zzzzj), the services rendered by the members of the 1st petitioner were not taxable. Creation of new entry is not by way of amending the earlier entry. It is not a carve out of the earlier entry. Therefore, the services rendered by the members of the 1st petitioner cannot be brought to tax under that entry. Para 6.1 of 2008 (12) S.T.R. 68 6.1 On going t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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