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TMI Blog2014 (4) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... SUPREME COURT] which was not available before the Adjudicating authority at the time of passing the adjudication order in 2010. Secondly Adjudicating authority has not considered Para 2 of the CBEC Circular No. 128/10/2010-ST dated 24.08.2010 which is binding on the filed formations. Further the issue of free supply of goods/ sale of goods in a works contract and its inclusion in the assessable value, is required to be examined in the light of judicial pronouncement of Delhi High Court in the case of G.D. Builders vs. UOI [2013 (11) TMI 1004 - DELHI HIGH COURT], read with Rule -2A of the Service Tax (Determination of Value) Rules, 2006. In the light of these observations and in the interest of justice, therefore, the matter is required to be remanded back to the Adjudicating authority to decide the cases afresh in de-novo proceedings - Decided in favour of assessee. - Appeal No. : ST/82,83/2011 - ORDER No. A/10469-10470/2014 - Dated:- 31-3-2014 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant : Shri Prakash Shah Shri S.J. Vyas, Advocates For the Respondent : Shri K.M. Mondal, Special Consultant JUDGEMENT Per : Mr. H.K. Thakur; Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s classification of 34 ongoing contracts being undertaken by the appellant as on 01.6.2007. Whether the service classification should be done as Works Contract Services or under the respective service heads applicable before 01.6.2007. Shri Prakash Shah strongly argued that show cause notice dated 22.10.2008, originally issued to the appellant, proposed to demand service tax under the Work Contract Services and only the benefit of the Works Contract (Composition Scheme for payment of Service Tax) Rules, 2007, was proposed to be denied. It was his case that the entire basis of the show cause notice was changed by an addendum dated 14.12.2009 where the classification was proposed to be changed to Commercial or Industrial Construction Services or Construction of Complex Services and in the Addendum the benefit of Notification No. 1/2006-ST dated 01.3.2006 was proposed to be denied. That the changes made in the Addendum dated 14.12.2009 were on altogether different grounds than what was proposed in the original show cause notice dated 22.10.2008. That as the Addendum dated 14.12.2009 was a new show cause notice, therefore, the same is clearly time barred. Learned advocate relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for Works Contract Service with effect from 01.06.2007 for all its ongoing contracts. The appellant, however, did not intimate by the said letter dated 16.7.2007 that it opted to pay service tax at the concessional rate under the Composition Scheme. (iii) That perusal of sub-rule (3) of Rule 3 would show that an assessee who opts to pay service tax under these Rules shall exercise such option in respect of a works contract prior to payment of service tax in respect of the said works contracts and option so exercised shall be applicable for the entire works contracts. Admittedly, in the present case, the appellant had paid service tax under respective taxable services prior to 01.06.2007. Consequently, the appellant was not eligible to get the benefit of the Composition Scheme to pay service tax at the concessional rate. The appellant ought to have paid service tax at the normal rate as per provisions of Section 66 read with Section 67 of the Finance Act, 1994. This was precisely the point explained to Shri Amit K. Raval, Vice President (Accounts) and Central Excise authorized signatory of the appellant Company at the time of recording of his statement on 07.8.2008. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) CCE Bhubneswar vs. Konark Cylinders Containers (P) Limited - [1994 (73) ELT 702 (Tri.)] (d) Best Company vs. CC, New Delhi - [2009 (239) ELT 294 (Tri.)] 5. With respect to the appeal No. ST/83/2011, it was the argument of the Revenue that appellant did not make any submission in respect of this appeal, nor appellant has pressed for allowing this appeal. Issue involved in this appeal is identical to that of appeal No. ST/82/2011. As far as facts of the case are concerned, the show cause notice dated 23.10.2009 issued by the Commissioner demands service tax for the period from 01.08.2008 to 31.07.2009. The show cause notice is well within the normal period of limitation. There is no Corrigendum or Addendum issued to the show cause notice. This impugned order passed by the Commissioner confirming the demand of service tax along with interest and imposing penalties on the appellant both under Section 76 78 of the Finance Act, 1994 is required to be upheld. 6. Heard both sides and perused the case records/ written submissions made by either sides. The main issue required to be deliberated in these appeals is as to what will be the appropriate classification of Works C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. As regards applicability of composition scheme, the material fact would be whether such a contract satisfies rule 3(3) of the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. This provision casts an obligation for exercising an option to choose the scheme prior to payment of service tax in respect of a particular works contract. Once such an option is made, it is applicable for the entire contract and cannot be altered. Therefore, in case a contract where the provision of service commenced prior to 1-6-2007 and any payment of service tax was made under the respective taxable service before 1-6-2007, the said condition under rule 3(3) was not satisfied and thus no portion of that contract would be eligible for composition scheme. On the other hand, even if the provision of service commenced before 1-6-2007 but no payment of service tax was made till the taxpayer opted for the composition scheme after its coming into effect from 1-6-2007, such contracts would be eligible for opting of the composition scheme. 4. The Board s previous Circular No. 98/1/2008-S.T., dated 4-1-2008 and the ratio of judgment of the High Court of Andhra Pradesh in the matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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