9911796707
TMI Blog2013 (5) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... vice had been completed prior to 01.03.2008 and, therefore, the taxable event had occurred prior to 01.03.2008. Consequently, the applicable rate of tax would be the rate which was prevalent prior to 01.03.2008. Since the entire foundation of the argument of the revenue is based on the instruction dated 28.04.2008 which has been found to be invalid by virtue of decision in the case of Vistar Construction (supra), the present appeal is also liable to be dismissed Unable to agree with the appellant inasmuch as the instruction dated 28.04.2008 had been dealt with in detail in Vistar Construction case (supra) and the paragraph 2 thereof, specifically refers to the said Composition Rules of 2007. Secondly, and more importantly, the show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rendition of the taxable service. The Tribunal noted that recently it had decided that the appropriate rate of tax would be the rate which was in force at the time when the service was rendered and not the rate which was in force on the date in which the payments were received. Accordingly, the Tribunal dismissed the Revenue s appeal. 2. The revenue is aggrieved by the said order dated 27.02.2012 and has preferred the present appeal before us. 3. We may point out that the entire controversy arose out of the show cause notice dated 21.04.2009 wherein the main allegation against the respondent was as under:- 2. Whereas on scrutiny of the ST-3 return of Works Contract Service for the period Oct. 07 March 08, it has been observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the case of the appellant that since the payments for the services rendered were received only after 01.03.2008, the applicable rate would be 4% and not 2%. Reliance was placed by the revenue on the Ministry of Finance, Department of Revenue instruction dated 28.04.2008. 5. We may point out at this juncture itself that recently a similar issue had arisen in another set of cases before us. Those were decided on 23.01.2013 in W.P.(C) 5636/2010 entitled Vistar Construction Pvt. Ltd. v. Union of India Others and W.P.(C) 3632/2012 entitled Piyare Lal Hari Singh Builders Pvt. Ltd. v. Union of India Others. In that decision, the main controversy was with regard to the applicable rate of service tax in respect of works contract service. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the learned counsel for the appellant inasmuch as the instruction dated 28.04.2008 had been dealt with in detail and the paragraph 2 thereof, specifically refers to the said Composition Rules of 2007. Secondly, and more importantly, the show cause notice does not contain any such allegation with regard to the respondent having made an option under the said Rule 3. Since, there is no foundational basis for making the submission and no such submission was made before the appellate authority, the appellant cannot be permitted to take up this plea before this court for the first time. 7. In view of the foregoing, following the decision in the case of Vistar Construction (supra,) the present appeal does not raise any substantial questio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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