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TMI Blog2018 (2) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... 24/05/2007. The Department has also filed appeal No.ST/342/2007 against the impugned order dt. 24/05/2007. Since the issue involved in all the four appeals is identical, all the appeals are taken up together for discussion and disposal. 2. Details of three appeals filed by assessee are given below:- Appeal No. Period of dispute OIO Demand confirmed Penalty ST/280/2007 July 2003 to March 2006 No.14/2007-ST dt. 22/03/2007 Rs.1,95,49,257/- Rs.100/- per day u/s 76 Rs.1,95,49,257/- u/s 78 ST/281/2007 July 2003 to March 2006 No.15/2007-ST dt. 22/03/2007 Rs.1,79,75,757/- Rs.100/- per day u/s 76 Rs.1,79,75,757/-u/s 78 ST/347/2007 July 2003 to April 2006 No./39/2007-ST dt. 24/05/2007 Rs.7,87,77,447/- Rs.100/- per day upto 18/04/2006 and ₹ 200 per day from 19/04/2006 to 30/04/2006 u/s 76 Rs.7,87,77,447/-u/s 78 For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal dt. 24/05/2007 confirmed all the proposals in the show-cause notice. Aggrieved by the said order, appellant/assessee has filed these three appeals. 3.3. In appeal No.ST/342/2007, the prayer of the Department is to enhance the penalty imposed on the assessee. 4. Heard both sides and perused records. 5.1. Learned counsel for the assessee submitted that the impugned orders passed by the Commissioner in all the three appeals are not sustainable in law as the same are contrary to the law laid down by the Hon ble Supreme Court. He further submitted that the issue of whether the service tax can be levied on indiisible Works Contract Service (WCS) prior to 01/06/2007 i.e. the date of introduction of WCS under Section 65 (105) (zzzza) of the Act, has been settled by the Hon ble Supreme Court in the appellant s own case in CCE C, Kerala Others Vs. Larsen and Toubro Ltd. [2015-TIOL-187-SC-ST] wherein the Supreme Court has held as under:- i. Prior to 01/06/2007, any charge to tax under the category of Erection, Commissioning and Installation service is only of service contracts simpliciter and not composite indivisible works contracts. ii. A works contract is a separate sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the Tribunal in the case of Daelim Industrial Co. Vs. CCE, Vadodara [2003(155) ELT 457] held that a works contract on turnkey basis cannot be vivisected for the purpose of levy of service tax. The above decision has been affirmed by the Hon ble Supreme Court and reported in Commissioner Vs. Daelim Industrial Co. Ltd. [2004(170) ELT A181]. 5.4. He further submitted that it is only through the Finance Act, 2007, w.e.f. 01/06/2007, the Government has sought to levy service tax on some of the activities falling under works contract . The relevant portion of the Finance Act is extracted herein below:- (zzzza) to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. Explanation. - For the purposes of this sub-clause, works contract means a contract wherein, - (i) transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods, and (ii) such contract is for the purposes of carrying out, - (a) erection, commissioning or installation of plant, machinery,? equip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levying service tax on the service component of an indivisible contract and in support of this, he relied upon the following decisions:- i. State of Punjab Vs. Associated Hotels India Ltd. [1972 AIR 1131] ii. CCE C, Kerala others Vs. Larsen and Toubro Ltd. [2015(39) STR 913 (SC)] 5.8. He also submitted that invocation of extended period under Section 73 of the Act is incorrect and bad in law as the appellants have been filing half-yearly returns and has disclosed all the material facts and has not suppressed any facts from the Department. 6. On the other hand, learned special counsel for the Revenue has reiterated the findings of the impugned order. Further the learned special counsel fairly conceded that the present appellant was one of the party before the apex court in the case of L T Ltd. Cited supra which has categorically held that prior to 01/06/2007, any charge to tax under the category of erection, commissioning and installation service is only service contract simpliciter not indivisible WCS. 7. After considering the submissions of the parties and perusal of the material on record and the various judgments relied upon by the appellant, we find that this i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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