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TMI Blog2016 (7) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... demanded from the appellant. The appellant deposited Rs. 15 lakhs and Rs. 21 lakhs respectively on 22-9-2010 and 29-9-2010. Further on 18-5-2011, a demand of Rs. 1,35,95,874/- was raised but the appellant submitted that the appellant has achieved bench mark performance by February, 2010 itself, therefore, the demand after March, 2010 is not sustainable. But the appellant further deposited an amount as below : Date Amount 9-6-2015 15 lacs 24-8-2011 17,34,629 10-4-2012 10 lacs 5-7-2012 8,24,865/- The Revenue further sent notice on 4-6-2012 raising the demand of Rs. 1,33,50,164/- for the period March, 2008 to 31-3-2012. The appellant filed civil Writ Petition No. 19083/2012 before the Hon'ble High Court and Hon'ble High Court directed the appellant to make detailed representation to the respondent. In compliance to the direction of Hon'ble High Court, the Revenue passed the impugned order on 14-12-2012 whereby the appellant was asked to pay a sum of Rs. 1,18,00,249/- for the period March, 2010 to 31-3-2012. Aggrieved with the said order, the appellant is before us. 3. Shri Jagmohan Bansal, Advocate, learned Counsel for the appellant submits that prior to introduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to pay charges till the date of waiver. In this case, the appellant has made payment of charges during the period 2008 to 2010 in six instalments during the period September, 2010 to July, 2012. The appellant further failed to make advance payment of charges asked to pay from the Revenue. Therefore, the appellant is not entitled for exemption and the appellant is liable to pay charges from the date till from the date of issue of the order waiver. 5. Heard both sides and considered the submissions. 6. On careful consideration of the submissions made by both sides, we find that short issue involved before us : (a) Whether the appellant is entitled for exemption from payment of cost recovery charges for March, 2010 or not? and (b) Whether the appellant can be held responsible for non-payment of cost recovery charges when no calculation was made by the Revenue? 7. We find that the appellant started working as CFS with effect from 1-3-2008 and as per instruction dated 14-12-1995 read with Circular No. 52/97-Cus., dated 17-10-1997, a CFS is required to deposit in advance the cost recovery charges. It is fact on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponent. It begins by working downwards from the gross amount charged for the entire works contract and misusing from it the value of the property in goods transferred in the execution of such works contract. This is done by adopting the value that is adopted for the purpose of payment of VAT. The rule goes on to say that the service component of the works contract is to include the eight elements laid down in the second Gannon Dunkerley case including apportionment of the cost of establishment, other expenses and profit earned by the service provider as is relatable only to supply of labour and services. And, where value is not determined having regard to the aforesaid parameters, (namely, in those cases where the books of account of the contractor are not looked into for any reason) by determining in different works contracts how much shall be the percentage of the total amount charged for the works contract, attributable to the service element in such contracts. It is this scheme and this scheme alone which complies with constitutional requirements in that it bifurcates a composite indivisible works contract and takes care to see that no element attributable to the property in go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excises and Salt Act, 1944 on the basis of surmises and conjectures. This we are afraid is not possible. Before leaving the judgment in Murarilal's case (supra), we wish to add that so far as partnership firms are concerned, the Income Tax Act contains a specific provision in Section 189(1) which introduces a fiction qua dissolved firms. It states that where a firm is dissolved, the Assessing Officer shall make an assessment of the total income of the firm as if no such dissolution had taken place and all the provisions of the Income Tax Act would apply to assessment of such dissolved firm. Interestingly enough, this provision is referred to only in the minority judgment in M/s. Murarilal's case (supra). The impugned judgment in the present case has referred to Ellis C. Reid's case but has not extracted the real ratio contained therein. It then goes on to say that this is a case of short levy which has been noticed during the lifetime of the deceased and then goes on to state that equally therefore legal representatives of a manufacturer who had paid excess duty would not by the self-same reasoning be able to claim such excess amount paid by the deceased. Neither of these reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the present case, the parliament would have the legislative competence to levy service tax in relation to the services rendered in construction of a complex. However, as explained in Commissioner of Central Excise and Customs, Kerala v. Larsen & Toubro Ltd. (supra) in absence of machinery provisions to exclude non-service elements from a composite contract, the levy on services referred to in Section 65(105)(zzzh) could only be imposed on contracts of service simplicitor - that is, contracts where the builder has agreed to perform the services of constructing a complex for the buyer-and would not take within its ambit composite works contract which also entail transfer of property in goods as well as immovable property. The measure of tax assumes significance in such contracts as a levy of the service tax taking the gross amount charged by a builder for a composite contract would amount to a levy of service tax not only on the service element but also on the immovable property and the property in goods transferred or intended to be transferred to the ultimate buyer. 10. In view of the above discussion, we hold that as the appellant has already achieved the bench mark ..... X X X X Extracts X X X X X X X X Extracts X X X X
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