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TMI Blog2018 (4) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... x registration which they had obtained under the category of 'erection, commissioning and installation service". The Appellant made communication with the department and statement of Shri A.K. Pandey, director was also recorded to the effect that their services fall under the category of 'Works Contract Service' and not liable for service tax. The Appellant were issued show cause notice in March' 2010 alleging that the services rendered by them are taxable under the category of Erection, installation and maintenance services. Demands of service tax for the period 16.06.2005 to 30.11.2209 was raised against the Appellant by invoking extended period under Section 73 (1) of the Finance Act, 1994. It was also proposed to charge interest and impose penalties under section 76, 77 and 78 of the Finance Act, 1994. The charges made in the show cause notice were set aside by the adjudicating authority vide order dt. 25.09.2010. The revenue filed appeal against the said order before the Tribunal who remanded the matter for consideration of all issues by relying upon the Larger Bench judgment in case of BSBK P. Ltd 2010 (18) STR 555 which held that the Works contract can be vivisected. After d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 and after said period and hence travelled beyond the scope of show cause notice. He submits that the electrification works were undertaken 'in respect of roads' which was excluded from the scope of 'Works Contract' and therefore not liable to service tax even after 01.06.2007. He relies upon the orders in case of Jagdish Prasad Agarwal Vs. CCE 2017 (3) GSTL 455 (TRI), Pioneer Fabricators P. Ltd. Vs. CCE 2016 (42) STR 563, P.B. Rathod Vs. CCE 2015 (39) STR 650 and Lakshmi Constructions Vs. CCE 2015 (39) STR 175. He also submits that the demand hit by limitation of time and for the same reason no penalty can be imposed. 3. Shri M.K. Sarangi, ld. Joint Commissioner (AR) supports the impugned order. He submits that the adjudicating authority has rightly bifurcated the contracts into taxable and non taxable services in terms of the direction of the Tribunal in remand orders. He has filed written submission to the effect that in L& T case supra the issue involved was levy of Service Tax before 01.06.2007 and not of after said period. He relied upon the judgment in case of Nagrajuna Construction Ltd. 2012 (28) STR 561 (SC) that the option to pay tax under different category is not per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.06.2007. Coming to the question as to whether the services rendered after 01.06.2007 are liable to tax, we note that the Appellant has submitted that as the services were in respect of road to M/s Pimpri - Chinchwad Municipal Corporation and Uttar Pradesh Power Corporation Limited, the same is excluded from 'Works Contract' service. The revenue has cited the order of this Bench in case of Royal Electricals supra wherein the demands were confirmed. We find that the ratio of Royal Electricals are not applicable to the facts of the present case as in said case no evidence were adduced before Tribunal that such Street lights were installed in respect of Road Construction. Further the services involved were of erection, commissioning and installation whereas in the present case the services involved are of Works Contract as held by the adjudication authority. The Appellants are rendering services of Works contract which also included transfer of property and the said services were in respect of Road. Even their clients are deducting the VAT at source on material so supplied/ used which shows that the services involved are of Works contract. In terms of Section 65 (105) (zzzza) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 (216) ELT 177 (SC) the Hon'ble Court held as under : 10. The expression "suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or "collusion" and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a willful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct. 11. Factual position goes to show the Revenue relied on the circular dated 23-5-1997 and dated 19-12-1997. The circular dated 6-1-1998 is the one on which appellant places reliance. Undisputedly, CEGAT in Continental Foundation Joint Venture case (supra) was held to be not correct in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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