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TMI Blog2012 (12) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... x arising from the impugned order – applicant directed to make a pre-deposit of 50% of the tax demanded within six weeks from the date of receipt of this order for admission of the appeal. - ST/179 of 2011 - ST/S/671 of 2012-Cus. - Dated:- 12-6-2012 - Ms. Archana Wadhwa, Mathew John, JJ. L.P. Asthana and Ms. Neha Gulati for the Appellant. B.L. Soni for the Respondent. ORDER Mathew John, Technical Member The applicants, a partnership firm constructed residential complexes under contracts awarded to them by Delhi Development Authority (DDA) during the period 16-06-2005 to 31-12-2007. The applicants were not registered with Service tax authorities and they did not pay any service tax on consideration received by them from DDA. Revenue issued a show-cause notice demanding service tax on such services rendered by the applicant during the abovesaid period under the category of Construction of Complexes as defined under section 65(30a) and made taxable under entry at 65(105)(zzzh) of the Finance Act, 1994. This entry came into force with effect from 16-06-2005. The said Notice has been adjudicated confirming tax demand of Rs. 97,10,003/- along with interest and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at any place and therefore jurisdiction has to be decided with reference to the place where activity was carried out. Further the registration of the firm at Kolkata shows that the firm has two offices at Kolkata and Noida and does not state that the office at Kolkata was the Registered office. 6. The ld A.R. for Revenue submits that by 46th Amendment to Constitution introducing clause 29A in Article 366 of the Constitution certain indivisible contracts have been deemed to be divisible into contract for sale of goods and contract for service. 7. The ld. A.R. further submits that the entry for works contract introduced in section 65(105) (zzzza) of Finance Act, 1994 only introduced a new method for discharging of service tax liability on works contract at the option of assessees and this entry cannot have the effect of annulling entry at 65 (105) (zzzh) which was in existence prior to the date when entry at 65 (105) (zzzza) was introduced and also after the introduction of the entry. 8. The ld. A.R. also points out that service tax has been demanded after giving abatement of 67% of the gross value of the contract towards value of materials supplied, and therefore the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said definition as to deemed sales will have to be read in every provision of the Constitution wherever the phrase 'tax on sale or purchase of goods' occurs. This definition changed the law declared in the ruling in Gannon Dunkerley Co. only with regard to those transactions of deemed sales. In other respects, law declared by this Court is not neutralized. Each one of the sub-clauses of Article 366(29A) introduced by the 46th Amendment was a result of ruling of this Court which was sought to be neutralized or modified. Sub-clause (a) is the outcome of New India Sugar Mills v. Commnr. of Sales Tax - 14 STC 316 = 1963 Suppl. 2 SCR 459 and Vishnu Agencies v. Commissioner of Sales tax - AIR 1978 SC 449. Sub-clause (b) is the result of Gannon Dunkerley Co. - 1959 SCR 379. Sub-clause (c) is the result of K.L. Johar and Company v. C.T.O. - 1965 (2) SCR 112. Sub-clause (d) is consequent to A.V. Meiyyappan v. CIT -20 STC 115 (Madras High Court). Sub-clause (e) is the result of Jt. Commercial Tax Officer v. YMIA - 1970 (1) SCC 462. Sub-clause (f) is the result of Northern India Caters (India) Ltd. v. Lt. Governor of Delhi - 1978 (4) SCC 36 and State of H.P . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials supplied to DDA during a period without seeing what are the contracts for which tax is demanded and what is the value of materials supplied in respect of those contracts. The direct conclusion of the above figures is that the appellants were rendering the service aspect of the works contract almost free of cost which should result in inevitable loss to the company. Prima facie this cannot be accepted. 14. The arguments of the applicants basically challenge the virus of entry at section 65(105) (zzzh) which would imply challenge to similar entries at section 65 (105)(zzd), 65 (105) (zzq), 65(105)(zzt) etc before and after 01-06-07. Considering the provisions Article 366 (29A) of the Constitution and also the various judgment of the Hon. Apex Court we are not able to agree with this argument. The entry at 65 (105)(zzzza) only provides a new method of determining the tax liability on activities of the type covered under the said entry at the option of the assesse and subject to the provisions made. We also note that the Commissioner has already provided 67% abatement from gross value realized towards value of materials sold which is percentage fixed for assesses who a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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