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TMI Blog2014 (1) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... dertaken in respect of a new building. Therefore, there is no dispute that the activities undertaken by the appellant are in the category of completion or finished work or renovation or restoration of building or civil structure. The only question that arises is whether the appellant is eligible for the abatement or not. It is noticed that Notification No.15/2004-ST dated 10.9.2004 was the first Notification which provided the benefit of abatement subject to the condition that an assessee should not have availed the benefit of Notification No.12/2003-ST dated 20.6.2003 which provides for exemption to the extent of goods sold during the process of rendering the service subject to conditions - appellants cannot be found fault with if they cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the break-up of goods supplied and services rendered and separate consideration for sales and service is not indicated in the invoice. According to the appellants, these are composite contracts and appellant is registered and is paying VAT on the portion attributable to goods and has been paying service tax under the category of commercial or industrial construction service . Within the commercial or industrial construction service , the appellants work would come under the category of (d) covering repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or conduit of the definition. Appellant was paying service tax only on 33% of the value availing the benefit of Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration or similar services in relation to building or civil structures. With effect from 2005, renovation was also added to the definition and in 2007; the activity was also brought under works contract but only when the work is undertaken in respect of a new building. Therefore, there is no dispute that the activities undertaken by the appellant are in the category of completion or finished work or renovation or restoration of building or civil structure. The only question that arises is whether the appellant is eligible for the abatement or not. It is noticed that Notification No.15/2004-ST dated 10.9.2004 was the first Notification which provided the benefit of abatement subject to the condition that an assessee should not have availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the provision of service would be more than equal to or more than 67% and therefore conditions under Notification No.12/2003 are met by them. He also submits that if an opportunity is given and if the matter is remanded, they would be able to submit necessary records and documents to show that while providing service, goods have been supplied and benefit of Notification would be available to them. However during the hearing we verified some purchase orders, invoices and found that the claim of the appellant regarding the nature of work they do and the treatment of such transactions is correct. 3.2 By referring to reply to show-cause notice, appeal memorandum, etc., the learned counsel submits that it was always their claim that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that in case of long term contracts classification would undergo a change w.e.f. 1.6.2007 as works contract describes the nature of the activity more specifically. 6. Bhayana Builders (P) Ltd. vs. CST: 2013 (32) S.T.R. 49 (Tri.-LB) Value of free supplies not to be added to the gross amount charged as they would not constitute non-monetary consideration. We find substance in the arguments advanced by the learned counsel on both the counts above and also consider that his plea that in terms of these decisions, the tax paid by the appellant by excluding the goods supplied would meet the requirement of the statute. In any case, we find that in this case show-cause notice was issued on 13.10.2010 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t what they were doing was correct. The appellants had taken the registration themselves; were paying service tax regularly; filing returns regularly; moreover the issue as to whether a contract can be divided or not for the purpose of levy of service tax has been referred to 5-Member Bench recently. Reference to 5 member Bench is another important aspect which would show that extended period could not have been invoked in this case. 4. In view of the above discussions, we consider that in this case, the impugned order demanding differential service tax with interest and imposing penalty by invoking extended period cannot be sustained on merit as well as on limitation. In the result, appeal is allowed with consequential relief, if any, to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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